An employee was automatically unfairly dismissed because of his union activities even though...
Unfavourable treatment due to employee's mistaken belief was not disability discrimination
iForce Ltd v Wood
The disciplining of an employee for refusal to obey a lawful instruction (due to a mistaken belief it would impact on her disability) was not unfavourable treatment due to something arising from a disability.
Ms Wood, a warehouse operative, was disabled – suffering from osteoarthritis which, she believed, worsened in cold, damp weather. Her working practices were changed such that, rather than being at a fixed workstation, she was required to move between benches. She refused to work at the benches near the loading doors because she believed it would be colder and damper and thus adversely affect her osteoarthritis. Her employer’s investigations showed this was in fact untrue - the temperature and humidity levels were not materially different throughout the warehouse. The employer regarded her refusal to obey the instruction as unreasonable and issued a final written warning (subsequently downgraded on appeal to a written warning). Ms Wood claimed that the sanction was unfavourable treatment arising in consequence of her disability (under s. 15 of the Equality Act). A tribunal agreed and the employer appealed.
The appeal was allowed.
While a broad approach applies when establishing whether there exists a causal connection between the ‘something’ (here the refusal to work at benches near the loading doors) and the underlying disability for the purposes of s.15, there still had to be a connection. The test is an objective one. Did the ‘something’ arise from her disability? No, it arose from Ms Wood’s mistaken belief that moving benches would worsen her condition. If the mistaken belief had arisen because of Ms Wood’s disability, for example, impaired judgement (as had happened in another s. 15 case - City of York Council v Grosset) – then a s. 15 claim may have been made out. But this wasn’t the way that Ms Wood had framed her case. There could be no unfavourable treatment arising from a misplaced perception that was not established on the facts.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0167_18_0301.html
This case is a useful reminder that employers should always carry out their own investigations into whether a disability would be impacted, rather than accept an employee’s word for it and if their investigations show that what the employee says might not be correct, they should not shy away from saying so.