McCorry & Ors v McKeith

Factual and Procedural Background

This appeal arises from a decision of an Industrial Tribunal dated 21 March 2016 concerning the dismissal of the Plaintiff by Company A, her employer. The Tribunal found the dismissal to be automatically unfair, substantially unfair, and amounting to disability discrimination. Company A is an unincorporated body providing advice services in The City with a small number of employees, including the Plaintiff who worked part-time as an advice assistant. The Plaintiff was dismissed on grounds of redundancy linked to disputed funding issues. Prior to dismissal, the Plaintiff was required by the manager of Company A to remain absent from work at times to care for her disabled daughter, against her wishes. The Tribunal found that the dismissal was unfair on various procedural and substantive grounds and that it constituted associative direct disability discrimination based on the disability of the Plaintiff's daughter. The appeal challenges only the Tribunal's finding of disability discrimination.

Legal Issues Presented

1. Whether the Tribunal erred in its application of the burden of proof in respect of direct discrimination.
2. Whether the Tribunal erred in its application of the correct comparator in respect of direct discrimination.
3. Whether the Tribunal erred in finding a claim of associative discrimination pursuant to the Disability Discrimination Act 1995.
4. Whether the Tribunal erred in taking into account irrelevant considerations regarding other individuals made redundant.
5. Whether the Tribunal's finding of direct discrimination was perverse in light of the evidence.

Arguments of the Parties

Appellant's Arguments

• The Tribunal incorrectly applied the burden of proof concerning direct discrimination.
• The Tribunal used an incorrect comparator by comparing the Plaintiff to employees with non-disabled children rather than those with similar caregiving responsibilities and anticipated absences.
• The dismissal was due to consequences of disability (disruption caused by absences), not disability itself, relying on precedent that such consequences do not amount to discrimination.
• The Tribunal improperly considered irrelevant factors, including the treatment of other employees made redundant.
• The Tribunal’s conclusion of direct discrimination was unsupported by the evidence and therefore perverse.

Appellee's Arguments

• The Plaintiff was directly discriminated against because she was the primary carer of her disabled daughter.
• The dismissal was based on the manager’s belief that the Plaintiff’s place was at home with her disabled daughter, not on any legitimate operational disruption.
• The Tribunal correctly applied the shifting burden of proof and found that the employer failed to provide an adequate explanation for the dismissal.
• Associative discrimination is recognized under the Disability Discrimination Act 1995 as interpreted in relevant case law and EU directives.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shamoon v Chief Constable of the RUC [2003] UKHL 11	Approach to discrimination claims: identification of appropriate comparator and analysis of less favourable treatment and reason why.	The Court relied on the principle that tribunals may focus on the reason for treatment to avoid difficult comparator disputes.
Watt (Carter) v Ahsan [2008] 1 AC 696	Clarification of comparator test in discrimination claims, including actual and hypothetical comparators and evidential comparators.	The Court considered the nature of comparator selection and relevance of evidential comparators in assessing discrimination.
London Borough of Lewisham v Malcolm [2008] UKHL 43	Distinction between discrimination based on disability and discrimination based on consequences of disability.	The Court held that adverse treatment due to consequences of disability (disruption caused by behavior) did not constitute disability discrimination.
Coleman v Attridge Law [2008] ICR 1128	Recognition of associative discrimination under EU Framework Directive 2000/78/EC.	The Court of Justice held that associative discrimination falls within the scope of the Directive, influencing the interpretation of domestic law.
EBR Attridge LLP v Coleman [2010] ICR 242	Interpretation of the Disability Discrimination Act 1995 to include associative discrimination claims.	The Employment Appeal Tribunal held that the 1995 Act could be read to apply to associative discrimination, remitting the case for substantive consideration.
Wong v Igen Ltd [2005] EWCA Civ 142	Explanation of the shifting burden of proof in discrimination claims.	The Court confirmed a two-stage process: claimant must prove facts from which discrimination could be inferred; then burden shifts to employer to disprove discrimination.
Madarassy v Nomura International plc [2007] EWCA Civ 33	Clarification of the standard for establishing a prima facie case of discrimination and the shifting burden of proof.	The Court emphasized that mere possibility is insufficient; a reasonable Tribunal must be able to conclude discrimination on balance of probabilities before burden shifts.

Court's Reasoning and Analysis

The Court analysed the Tribunal’s factual findings and legal conclusions with reference to statutory provisions and relevant case law. It emphasised that the Tribunal found the dismissal was not based on disruption caused by absences but rather on the manager’s belief that the Plaintiff’s proper place was at home with her disabled daughter, a view described as profoundly wrong. This factual finding undermined the appellant’s argument relying on the precedent that consequences of disability do not constitute discrimination.

The Court noted the legal distinction between discrimination "for a reason which relates to" disability and direct discrimination "on the ground of" disability, but did not resolve the significance of this difference, focusing instead on the facts. It accepted the Tribunal’s application of the shifting burden of proof, finding that the Plaintiff established a prima facie case of associative direct disability discrimination and that the employer failed to provide an adequate explanation. The Court also endorsed the Tribunal’s recognition that associative discrimination is established law following EU directives and domestic interpretation.

The Court rejected the appellant’s contention that the comparator chosen was incorrect, as the comparator proposed was based on circumstances not supported by the Tribunal’s findings. It also dismissed the argument that irrelevant considerations influenced the Tribunal’s decision, affirming that the evidence supported the conclusion of discrimination.

Holding and Implications

The appeal is DISMISSED.

The Court upheld the Tribunal’s finding that the Plaintiff was directly discriminated against on the basis of associative disability discrimination related to her disabled daughter. The decision confirms that dismissal motivated by a manager’s belief that an employee’s place is at home caring for a disabled relative constitutes unlawful direct disability discrimination. The ruling reinforces the application of the shifting burden of proof in discrimination claims and affirms the recognition of associative discrimination under the Disability Discrimination Act 1995 as interpreted in light of EU directives. No new precedent was established beyond affirming existing principles and applying them to the facts of this case.