The EAT has ruled that an employee who was given a written warning for refusing to comply with her employer's instruction to move workstations based on a mistaken belief that it would adversely affect her disability did not suffer unfavourable treatment because of something arising from a disability.
The Equality Act prohibits various types of disability discrimination, one of which is "discrimination arising from disability". This type of discrimination occurs if an employer treats an employee unfavourably because of something arising in consequence of their disability, where the treatment cannot be shown to be justified as a proportionate means of achieving a legitimate aim. In City of York Council v. Grosset (see our previous alert here) the Court of Appeal gave the following guidance:
- The first issue (the reason for the unfavourable treatment) involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something"
- The second issue (whether it was in consequence of the disability) is an objective matter; is there a causal link between B's disability and the relevant "something"?
The Claimant worked as a packer in a warehouse. She had osteoarthritis, a degenerative condition, which got worse in cold, draughty and damp weather. In 2016, her employer decided to change the packing practice to require the employees to "follow" the work, moving between work benches, rather than remain at a designated work bench. The Claimant refused to work near the bay doors as she believed that the temperature there was colder, which would worsen her condition. The employer carried out its own investigations and found there was no material difference in temperature, wind chill and humidity between the benches by the bay doors and those further in. It considered that there was no reasonable explanation for the Claimant's persistent refusal to work near the bay doors and gave her a written warning. The Claimant brought a claim for disability discrimination arguing that the warning amounted to unfavourable treatment because of something arising in consequence of her disability. The Employment Tribunal upheld her claim on the basis that the warning was given because she refused to comply with the instruction to work on the benches by the bay doors, which arose because she believed, albeit mistakenly, that it would exacerbate her osteoarthritis.
The EAT upheld the employer's appeal. The EAT acknowledged that a broad approach should be adopted when determining whether the "something" that had led to the unfavourable treatment had arisen in consequence of the Claimant's disability. As is clear from previous case law (see Grosset above) the connection may involve several links and the fact that the disability is not the immediate cause of the "something" does not mean to say that the requirement is not met. That said, there must be some connection between the "something" (here the refusal to work near the bay doors) and the Claimant's disability. The Tribunal's decision did not identify any such causal connection. The Tribunal found that the Claimant mistakenly believed that working near the bay doors would worsen her condition. However, it failed to explain how that mistaken belief was connected with i.e. was a consequential effect of her osteoarthritis. Had the Tribunal found that the Claimant's mistaken belief was caused by pain or stress that she was suffering in consequence of her disability which had impaired her judgment to the extent that she was unable to accept the "truth", the requisite link might have been established. However this was not how the Claimant had pleaded her case and was not an inference that might legitimately be drawn from the Tribunal's reasoning.
This decision is a helpful clarification of the causal connection that needs to be established in a discrimination arising from disability claim. An employee's perception of a connection between the "something" and the disability (without more) will not be sufficient. However, if the perception / impairment in judgment arises in consequence of the employee's disability, that may provide the necessary connection.
iForce Ltd v. Wood, Employment Appeal Tribunal