Background
Discrimination arising from disability occurs under section 15 of the Equality Act 2010 ("EqA") where both:
- 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.
There is a defence under section 15(2) of the EqA where the employer can show that it did not know (and could not reasonably be expected to know) the employee was disabled.
At present, there is a relatively low hurdle for claimants to satisfy section 15 claims. It will be sufficient to show that the unfavourable treatment has been caused by an outcome or consequence of the claimant's disability; the employer's motivation is irrelevant. This is a "loose", broad brush causation test. However, the EAT's decision in this case illustrates that there are limits on the loose causal connection approach.
The EAT in this case considered whether an employee who received a written warning for refusing to follow an instruction had been treated unfavourably due to something arising from a disability under section 15 of the Equality Act 2010.
Facts
Ms Wood worked for iForce Ltd, a logistics company, at one of its warehouses, packing items at a fixed workbench. She had osteoarthritis, a degenerative condition and a disability under the Equality Act 2010, which worsened in cold, damp weather.
The company changed its working practices in 2016, and asked Ms Wood (and other warehouse workers) to be prepared to move between benches, including those situated nearest the loading doors. Ms Wood refused because she believed this would require her to work in colder, damper conditions and thus exacerbate her osteoarthritis symptoms.
The company carried out extensive investigations into the matter to determine whether this was in fact going to be the case. The investigations showed that there was no material difference in temperature, humidity or wind chill factor throughout the warehouse. The company found it to be an erroneous belief on behalf of Ms Wood that it was going to be in fact colder and damper near the loading benches. The company therefore considered that Ms Wood's refusal to obey the instruction was unreasonable and issued her with a final written warning (downgraded on appeal to a written warning). Ms Wood brought a section 15 claim of discrimination because of something arising from her disability.
In the first instance, an Employment Tribunal found that 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, that it would adversely affect her condition. Therefore, the Tribunal found that the warning amounted to unfavourable treatment and that this arose in consequence of her disability. iForce appealed this decision.
The Employment Appeal Tribunal ("EAT")
On appeal, the EAT highlighted that while the case law confirms that the connection between the unfavourable treatment and the "something arising from one's disability" may be a loose one, there must however be a connection between whatever led to the unfavourable treatment and the disability. Furthermore, it must be noted that just because the disability is not the immediate cause of the "something" does not mean to say that the requirement is not met.
The EAT found that the connection had not been established in this case. The Tribunal had not found that iForce required Ms Wood to work in colder and damper conditions that might impact upon her disability. Rather, it had found that Ms Wood was mistaken in her belief that this was the case. The Tribunal had erred in law as it had failed to explain how this erroneous belief arose in consequence of her disability. The EAT allowed that a Tribunal might find that an employee's judgement was impaired as a result of (say) stress or pain suffered in consequence of disability. However, that was not how Ms Wood had put her case. There was no causal connection between Ms Wood's disability and the erroneous belief that had led her to refuse to accept iForce's instruction.
Comment
This case provides useful guidance on the causation test in discrimination arising from disability cases. The employee's perceived connection here between the unfavourable treatment and the "something arising" was not sufficient. It is an objective test, so in order to succeed, an employee must demonstrate that there is an actual causal link between the disability and the relevant "something". A mistaken belief in this case did not cross the threshold.
Authored by Roisin Reidy and Joanne Frew
