Can unfavourable treatment arise in consequence of a mistaken belief?

No, held the EAT in iForce v Wood.

Disability and fixed workstations

iForce employed Ms Wood as a packer in their warehouse. Ms Wood was a disabled person for the purposes of The Equality Act 2010, suffering from Osteoarthritis.

She worked at a fixed workstation. iForce amended its working practices, and asked that warehouse workers move between workstations.

Refusal to move workstation - Disability Discrimination?

Ms Wood refused to move workstation, as it was her belief that the symptoms of her osteoarthritis worsened in cold and damp weather. As some of the workstations were situated nearer the loading doors, it was her belief that her symptoms would be exacerbated if she moved.

iForce’s investigations showed this was an erroneous belief – in fact, the temperature and humidity levels were not materially different throughout the warehouse – and the Respondent considered the Claimant's refusal to obey the instruction was unreasonable and issued her with a final written warning (subsequently downgraded on appeal to a written warning).

She was issued with a warning which she said was unfavourable treatment arising in consequence of disability. A first instance the tribunal agreed.

EAT disagrees - Objective Test

The EAT disagreed. Whilst section 15 requires a broad approach, the test is an objective one requiring a connection between the treatment and disability.

There need not be an immediate nexus between the 'something' and the disability but there must be some connection. Did the 'something' (the warning) arise from the disability? No, 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.

Paul Burton, Head of Employment, says “Objectivity is the key here. Whenever considering changes in working environments, be sure to test the changes based on what a reasonable person would consider fair and apply any changes fairly to all staff."

 

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 Kate or Paul will be happy to discuss it with you.