Written by Brabners LLP
In the recent case of iForce Ltd v Wood [2019], the Employment Appeal Tribunal (“EAT”) confirmed that an individual did not suffer unfavourable treatment when she received a warning from her employer for refusing to comply with a work change. This is despite the fact that the employee held a mistaken belief that the changes to her working environment would worsen her disability and this is why she refused to comply. Read on for more details about this case and the useful learning points employers should be aware of.
Discrimination arising from disability
The definition of discrimination arising from disability is set out in section 15 of the Equality Act 2010 (the “Equality Act”). That section states that:
“A person (A) discriminates against a disabled person (B) if — (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim”.
The “something arising in consequence” of B’s disability is considered widely.
For instance, in the case of City of York v Grosset [2018] the Court of Appeal (“CA”) rejected the employer’s argument that it was necessary to show that the employer knew of the causal link between the “something” and the employee’s disability.
The Employment Statutory Code of Practice also confirms that the “consequence” of a disability is wide and includes anything which is “the result, effect or outcome of a disabled person’s disability”. The code gives examples of obvious consequences of a disability such as not being able to walk far to less obvious examples such as having to follow a restricted diet.
Facts
In iForce v Wood, Ms Wood was a warehouse employee of the logistics company, iForce Ltd (“iForce”). Her job involved packing items at a fixed workbench. Ms Wood had osteoarthritis, which was a disability under the Act. Ms Wood (supported by her GP) believed that her symptoms worsened in cold and damp weather.
In 2016, iForce changed its working practices requiring all warehouse workers (including Ms Wood) to move between the work benches, this included benches located near the loading doors. Ms Wood refused to work on the benches near the loading doors as she believed she would be exposed to draughts and colder temperatures which would affect her osteoarthritis.
Ms Wood’s belief was mistaken – iForce’s investigations proved that there was no material difference in temperature or wind chill factor in respect of the different benches located around the warehouse. iForce issued Ms Wood with a final written warning because it considered that her refusal to move benches was unreasonable.
Ms Wood brought Tribunal proceedings against iForce claiming that its actions in giving her a warning amounted to disability discrimination contrary to section 15 of the Equality Act. The Tribunal upheld Ms Wood’s claim finding that her written warning amounted to unfavourable treatment which was in consequence of her disability. The warning was given because she refused to comply with an instruction to work on benches near the loading doors, which in turn arose because she believed (albeit mistakenly here) that it would negatively affect her disability.
Unhappy with the Tribunal’s decision, iForce appealed to the EAT.
The Appeal
The EAT allowed the appeal confirming that a broad approach was to be adopted when considering whether the “something” alleged to have led the unfavourable treatment had arisen as a result of the disability. In this case, the warning was given because of Ms Wood’s refusal (which resulted from the mistaken belief behind it). However, there was not a sufficient connection between the mistaken belief held and Ms Wood’s disability for discrimination purposes.
In particular, the EAT noted that it had not been evidenced that Ms Wood’s mistaken belief arose in consequence of the osteoarthritis (her disability). While the EAT found that a Tribunal could find that an employee’s judgement was impaired due to a disability in some instances, for example such as stress or other mental health conditions, this was not the case here. The osteoarthritis itself did not impair Ms Wood’s thought processes in this regard.
As the Equality Act requirements were not met, the Tribunal’s decision was set aside.
Learning points
For employers, this case provides some welcome clarity on claims of discrimination arising from a disability and what tribunals will take into account. Whilst the EAT did not reject the idea that a false belief could never amount to something arising from a disability, this case demonstrates that there needs to be a sufficient causal connection between the unfavourable treatment (for example, a warning) taken by the employer and the disability itself. An employee’s mistaken belief won’t always be enough to show this.
Where an employee has a disability that could affect their mental judgement (rather than just resulting in a physical impairment), additional consideration should be given. Employers may need to seek medical advice in such situations to truly understand whether there is a causal link between the mistaken belief and the disability itself and before providing any disciplinary sanction.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership
