It is unlawful discrimination for an employer to treat a worker less favourably as a result of “something arising in consequence of” that worker’s disability. In Iforce Ltd v Wood, the Employment Appeal Tribunal (EAT) held that an employer cannot, however, treat a worker less favourably as a consequence of a mistaken belief held by the worker, unless the mistaken belief and the disability are connected.
Basic facts
Ms Wood worked as a warehouse packer. After being diagnosed with osteoarthritis, she was given packing duties at a fixed bench. When she noticed that cold weather affected her condition, she was allowed to change her working time to an earlier shift.
However, when the company introduced a rotation scheme requiring workers to move between benches, she refused because she believed that working near the bay doors would expose her to colder, damper conditions. After carrying out an investigation which found that the temperature and humidity levels were more or less the same throughout the warehouse, the company issued her with a final written warning (subsequently downgraded on appeal to a written warning) on the basis that her refusal constituted a failure to obey a reasonable instruction.
She brought a tribunal complaint that the warning amounted to disability discrimination contrary to section 15 of the Equality Act 2010.
Relevant law
Section 15 (1) states that “A person (A) discriminates against a disabled person (B) if: 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”.
Tribunal decision
The tribunal agreed that it was less favourable treatment to issue her with a warning.
Ms Wood had refused to work near the loading bay doors because she believed it would adversely affect her health and her belief was a reasonable one. In other words, her belief arose in consequence of her disability, thereby satisfying the requirements of section 15.
Even if the company had tried to argue that it was a legitimate aim (to ensure the work was done more efficiently), the tribunal held it would not have been a proportionate means to achieve that aim.
The company appealed, arguing that the tribunal was wrong to find that an erroneous belief about weather adversely affecting osteoarthritis could amount to a "something" that arose in consequence of Ms Wood’s osteoarthritis.
EAT decision
Acknowledging that the causal connection between the “something” and the underlying disability is a broad one in section 15, the EAT noted that it is also an objective one. The connection may involve several links, as opposed to an immediate “nexus”, but there has to be a connection of some sort.
In this case, the unfavourable treatment was the final written warning imposed as a result of Ms Wood’s refusal to work at the benches nearest the bay doors. The question, therefore, was whether that refusal (the “something”) arose as a consequence of her disability.
Although Ms Wood had a perception that her condition might worsen if she was required to work in colder and damper conditions as a consequence of her disability, the tribunal had not found that this was what the company was asking her to do. Indeed, it had accepted the evidence that there was no material difference in the conditions at different work benches and that Ms Wood was mistaken in her belief that there was.
As there was no discernible link between Ms Wood’s erroneous belief and her disability, the EAT could not understand how the tribunal could then conclude that her erroneous belief arose in consequence of her disability. It therefore upheld the appeal.