Fri 03 May 2019

Can discrimination arising from disability be based on an employee's mistaken belief?

The EAT considers a discrimination arising from disability claim based on an employee's mistaken belief.

Discrimination arising from disability occurs where an employee or worker is treated unfavourably because of something arising in consequence of their disability.  For a successful claim to be made there must be a causal link between the "something" and the disability.  

In the case of IForce Limited v Wood the claimant suffered from osteoarthritis.  The condition was exacerbated by cold and damp.  The claimant's job involved packing items at a fixed bench in a warehouse.  However, her employer changed its working practices with the result that the claimant would need to "follow the work" and move between benches, including those situated nearest to the loading doors.  The claimant refused to move because she believed this would require her to work in colder, damper conditions and thus exacerbate her symptoms.  The Respondent's investigated and found that this belief was erroneous - in fact the temperature and humidity levels were not materially different throughout the warehouse.  On this basis the employer considered her refusal to obey the instruction unreasonable and issued a final written warning, which was downgraded to a written warning on appeal. 

The claimant brought a claim of discrimination arising from disability before the employment tribunal, which was upheld.  The tribunal found that while the claimant's belief in the temperature and humidity differences in the warehouse was mistaken, her refusal to accept the instruction was because she believed compliance would adversely impact on her disability.   

However, the EAT allowed an appeal by the employer.  When determining whether the "something" that led to unfavourable treatment has arisen in consequences of an employee's disability, tribunals apply a broad approach. Earlier cases have shown that the requisite connection can arise from a series of links - however there still has to be some connection between the "something" and the claimant's disability. Here the something was the refusal to obey the instruction to work at benches near the loading doors.  However, the EAT found that the tribunal's judgement revealed no finding of a causal connection between the disability and the erroneous belief that led her to refuse to accept the employer's instruction - there was no explanation of how the disability might have caused the erroneous belief.   

This case highlights  that while the causal link between the "something" and the disability may be loose it needs to be based on more than only a perception of the employee.  Had there been evidence that the claimant's condition had, for example, caused her stress and this stress led to the formation of her perception that her condition would be adversely affected then the outcome of the claim would likely have been different.   However, as the mistaken belief was not connected to her osteoarthritis, her claim had to fail.

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