is where an employer treats an employee less favourably because of ‘something’ which results from their disability, and which can’t be justified. The Employment Appeal Tribunal has recently looked at whether it is discriminatory to discipline an employee for failing to follow an instruction they mistakenly think will exacerbate their disability.
In iForce v Wood, the employee had osteoarthritis, a disability which got worse in damp and cold conditions. She refused to move workstations because she mistakenly believed that the new bench was in a colder and damper place in the warehouse. She believed this would make her disability worse. Tests showed the area was no damper or colder than elsewhere. When she refused to move, she was given a warning for failing to follow a reasonable instruction. She brought a claim for discrimination arising from disability. She said the warning was less favourable treatment which arose because of something (the refusal to move benches) which resulted from her disability.
She won in the employment tribunal. However, the Employment Appeal Tribunal disagreed. There had to be a connection between the something (the refusal to move) and the disability. Tests showed that the proposed working area was not colder or damper. Unless the employee could link her mistaken belief to her disability (which she could not), there was no connection between her disability and her refusal to move workstations.
This case is good news for employers. A perceived (and mistaken) connection between the unfavourable treatment and the ‘something arising from disability’ will not be enough. There must be a causal connection between the disability and the less favourable treatment. In this case, there wasn’t one.
Astons Solicitors
April 2019