Section 15 Disability Discrimination: The ‘Something Arising’ question –  always such a joy!

7 October 2022

In Cowie and Ors v Scottish Fire and Rescue Service, the EAT has held that an employer’s paid ‘Special Leave’ policy during the COVID-19 pandemic, which provided an income for employees who were unable to work because they were shielding or because they had to provide childcare, did not give rise to discrimination arising from disability under the Equality Act 2010.

Accessing paid ‘Special Leave’ obviously does not amount to unfavourable treatment but the key point here was that the policy required employees wishing to access the arrangement to first exhaust whatever annual leave they had accrued. Accordingly, the Employment Tribunal held that the terms of the Special Leave Policy did give rise to a disadvantage.

However, the EAT further found, overruling the tribunal below, that the disadvantage did not arise because of disability. The terms of the policy impacted upon everyone seeking to access the ‘Special Leave’ arrangements (i.e. whatever the reason for their inability to work during the COVID pandemic). 


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