Summary: Can disability discrimination arise out of a mistaken belief?
No, says the EAT in iForce Ltd v Wood available here.
Background: 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.
The Tribunal needs to consider two issues: Did A treat B unfavourably because of an identified ‘something‘? And if so, did that ‘something‘ arise in consequence of B’s disability? It is not necessary to show that A 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.
Facts: Ms Wood, the employee, had been employed to work in iForce Ltd, the employer’s, warehouse since 1993. She was diagnosed with osteoarthritis in 2012. Both she and her employer agreed she was a disabled person.
Ms Wood 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.
iForce 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 also held a wellbeing meeting with Ms Wood to discuss the effect of temperature on her symptoms 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.
Ms Wood brought a Tribunal claim for discrimination because of something arising in consequence of her disability.
The Tribunal upheld her claim. The Tribunal decided that the warning was unfavourable treatment, and that this arose in consequence of Ms Wood’s 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 that it would adversely affect her condition (although this was a mistaken belief).
iForce appealed to the EAT.
The EAT upheld iForce’s appeal and found that Ms Wood had not been discriminated against. The EAT held that there should be a connection between the refusal to work on the benches and the disability, and the connection had not been established. Ms Wood was unable to show that the warning she was given for refusing to move was less favourable treatment because of “something arising from her disability“. Although the causal link between the “something” and the underlying disability may be a loose one and may involve several links, there must be an actual connection, not just a perceived connection on the part of the employee.
In this case, the warning did not arise from the disability but Ms Wood’s mistaken belief that moving benches would exacerbate her condition. There could be no unfavourable treatment where there has been a mistaken belief.
Implications: This is a useful case for employers which helps limit the link between a disability and unfavourable treatment.
This case also provides useful guidance that when there is concern that a person with a disability might be adversely affected by a new policy or practice, employers should investigate whether this is the case, rather than just taking the employee’s word for it. If the investigation shows that the employee would not be impacted, the employer will be in a stronger position to impose the policy/practice.
However, it is worth noting that if Ms Wood had been able to show that her judgement was impaired as a result of her disability, then the Tribunal might have been able to find a connection between her mistaken belief that the benches near the loading bays were cold and damp, and her disability. That would have meant that the sanction of the warning for her unreasonable behaviour would have amounted to discrimination.