Under the Equality Act 2010 it can be unlawful for an employer to treat an employee unfavourably because of ‘something arising’ in consequence of his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability.
This means that where an employer is addressing issues which it may believe has nothing to do with disability or any medical causation (e.g. conduct issues or absence issues), nevertheless if there is a connection between the disability and the treatment the employer can still be liable in the Employment Tribunal.
In the recent case the Employment Appeal Tribunal (EAT) has given some comfort to employers however confirming that there must be a genuine connection and unfavourable treatment that arises in consequence of a mistaken belief is not protected.
In iForce v Wood the Claimant worked in a factory and was a packer. The Claimant suffered from a disability, osteoarthritis, which was exacerbated by damp and cold. The Claimant refused to move workstation saying it would exacerbate her disability and was issued a warning. She claimed unfavourable treatment arising in consequence of her disability. The Tribunal agreed with her, but the EAT disagreed and overturned the findings.
The EAT found that whilst the protection under the Equality Act requires a broad approach, the test is an objective one requiring a connection between the treatment and the disability. There may not be an immediate connection between the ‘something’ and the disability but there must be some connection. Here the treatment (the warning) did not arise from disability. It arose from the Claimant’s mistaken belief that moving benches would worsen her condition. There could be no unfavourable treatment arising from a misplaced perception that was not established on the facts of the case. Here the Claimant had not been able to show there was any connection and therefore that claim should fail.
This area of the law is particularly difficult for employers, so if you find yourself in such a situation where a long term medical condition is asserted to be the reason for what would otherwise be a normal capability or conduct issue, then consult the RMIF legal helpline.
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