17 April 2019

Unfavourable treatment due to employee's mistaken belief was not discrimination arising from disability

iForce Limited v Ms E Wood UKEAT/0167/18

Why care?

In this case, an employer had not discriminated against an employee because of something arising from her disability. It was based upon the employee's genuine but mistaken belief that certain working conditions would adversely affect her condition, but the evidence showed that those conditions did not apply.

Discrimination arising from disability occurs when A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

However, this does not apply if A can show that A did not know, and could not reasonably have been expected to know, that B had the disability.

In City of York Council v Grosset (2018), the Court of Appeal held that this requires a tribunal to consider two distinct issues: did A treat B unfavourably because of an identified 'something'?

And if so, did that 'something' arising in consequence of B's disability? It was not necessary to show that the employer knew of the causal link between the "something" and the employee's disability.

The Equality and Human Rights Commission's Code of Practice explains that the consequences of a disability include anything which is "the result, effect or outcome" of a person's disability. These may or may not be obvious. A consequence may involve several links – for example, a condition which leads the employee to suffer pain may lead to being short tempered which results in an angry outburst for which the employee is disciplined.

The case

Ms Wood had been employed to work in her employer's warehouse since 1993. She was diagnosed with osteoarthritis in 2012. Both she and her employer agreed she was a disabled person.

She and her GP perceived that her symptoms worsened in cold and damp weather and in November 2016 it was agreed that, because of the effects of the cold weather when travelling to and from work, she would work a slightly earlier shift on a temporary basis.

In the same month, iForce introduced changes to working practices which required warehouse staff to move from bench to bench to follow the work, rather than staying in the same workspace all shift.

Ms Wood declined to work at the benches nearest the bay doors to the warehouse, saying they were colder and exacerbated her symptoms.

iForce carried out an investigation that showed no material difference in temperature between the end and inner benches.

The company concluded that her refusal to work at those benches was unreasonable and she was given a final written warning after a disciplinary hearing at which Ms Wood had referred to the temperature, to draughts and to damp conditions. The final written warning was later reduced to a first written warning.)

iForce held a wellbeing meeting with Ms Wood to discuss these and broader issues of the impact of her disability.

Although no noticeable difference in temperature between the benches was found, as a result of the meeting the company purchased a wind chill temperature thermometer and thermal underwear for Ms Wood.

Once installed, the wind chill thermometer also showed no discernible difference between benches.

An employment tribunal agreed with Ms Wood that the final written warning was unfavourable treatment arising in consequence of her disability because she believed, based on what her doctor had said, that colder temperatures made her symptoms worse.

iForce appealed to the EAT, arguing:

  • The tribunal had erred in law in deciding that an erroneous belief in a difference between the two benches, compounded by a perception that weather conditions affect osteoarthritis, could be a Grosset-style 'something'.
  • The tribunal erred in concluding that her belief was caused by her GP, since the GP had never been asked whether marginal differences in temperature or humidity could affect her condition. The GP's letters where related to the colder temperatures of travelling to and from work when she requested a change in her shift patterns.
  • The tribunal had given insufficient reasons to explain how an erroneous belief is caused by an employee's disability.

The EAT allowed the appeal.

The causal connection between the 'something' and the underlying disability may involve several links.

Provided the employer knows of the underlying disability, it does not matter whether or not it accepts the link. If a tribunal objectively finds there is a link that is sufficient.

Here, the unfavourable treatment was the final written warning. The tribunal had found that she did not refuse for any other reason other than that she believed working at all the benches in the warehouse "would adversely impact upon her health".

There is no suggestion that Ms Wood was not genuine in her belief that her symptoms would worsen if she worked in colder, damper conditions.

However, the objective evidence was that there was no material difference between the benches. Had there been, then her refusal to work there would seem to have been something arising in consequence of her disability; however, the tribunal had accepted that she was wrong.

It was neither a part of the claimant's case, nor the findings of the tribunal, that her condition meant she held the false belief.

There is nothing in the tribunal's reasoning to explain where there should be any link between the holding of a false belief and her disability and without this, there is no causal connection.

What to take away

It is clear that there can be no s15 discrimination without a causal connection, but employers should be aware that a connection can have several stages which go beyond the obvious.

However, the case provides some comfort to employers that unfounded beliefs or non-existent circumstances cannot lead to 'something' in consequence of a disability.

As the judgment notes, it might have been different if Ms Wood had pleaded, and the tribunal had found, that her condition made her unable to accept the evidence of temperature from the thermometers.

In that case, as in the Grosset case (where the stress that the employee felt as a consequence of coping with his cystic fibrosis led to poor judgement, and the showing of a unsuitable film to under-age pupils), such an argument might have led to a different outcome.

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