This case concerned a warehouse worker who was classed as disabled for the purposes of the Equality Act 2010 due to osteoarthritis. The employee believed that her condition was worsened in damp weather; a belief supported by her GP.
The organisation changed its working practices, requiring warehouse staff to work between benches in the warehouse and therefore move around the working area. The employee refused to do this as she believed moving to work at the benches near the loading doors would place her in colder, damper conditions and exacerbate her osteoarthritis. The organisation investigated her claims by installing thermometers, finding that temperature and humidity levels were not materially different throughout the warehouse.
Due to this evidence, the organisation did not accept that the employee had provided a reasonable explanation for her refusal and therefore issued a written warning to her after a disciplinary hearing. As the organisation accepted her actions were likely due to her worry and stress, they later downgraded this warning.
Despite this, the employee brought a claim to the employment tribunal (ET) for disability discrimination, arguing that issuing of a final written warning had subjected her to a detriment because of something arising as a consequence of her disability contrary to section 15 of the Equality Act.
The tribunal upheld her claim.
In forming their decision, they argued that whilst she had been mistaken to think she was being placed in colder, damper conditions, her refusal to accept the instruction was because she genuinely believed that compliance would adversely impact on her disability. The tribunal reasoned that she had not refused the instruction for any other reason.
The Employment Appeal Tribunal (EAT) overturned this decision.
They outlined that, when establishing that an employee has suffered a detriment as a consequence of their disability, there needed to be a connection between the something that had led to the detriment, in this case the employee’s refusal to follow management instruction, and the disability.
Although the employee had been correct to say that damper conditions would likely affect her condition, the organisation had not asked her to work in them. Instead, it had actually provided evidence that there would be no difference in her working conditions. Therefore, the employee’s refusal to follow the instruction was not a direct consequence of her disability as no causal link had been established that linked her disability to her belief.
The EAT did agree that this may not be the case where an employee’s mistaken perception is affected by their disability, therefore their mistake is as a consequence of a disability, but confirmed that the ET had not found this to be the case here. They, therefore, upheld the organisation’s appeal.
This outcome demonstrates a broad approach that tribunals will adopt when establishing if an employee has suffered a detriment as a consequence of their disability. Employees will need to clearly establish a causal link between the action that led to the detriment and their disability. Where an employee is mistaken in believing they are being subjected to a detriment, they will need to prove there is a causal connection between their disability and the erroneous belief, such as that the pain and stress as a result of their impairment caused the mistaken belief.
That said, organisations should take care when considering making changes to the working environment of a disabled employee. If the employee does claim that they will be placed at a disadvantage as a result, the organisation should listen to their concerns and conduct a thorough investigation in order to provide evidence that this will not happen.