Under the Equality Act 2010, 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 cannot show this treatment is a proportionate means of achieving a legitimate aim. For example, if an organisation expects an employee to conduct new duties that they feel could exacerbate a disability, and then disciplines them for their refusal, this could result in a discrimination arising from a disability claim.
For the purposes of the Act, epilepsy is considered a disability. However, workplace stress, despite potentially leading to conditions that can be considered disabilities, is not.
The claimant in this case worked in a village shop. Although she suffered from epilepsy, this previously had little to no effect on her day-to-day activities. Her relationship with the shop’s owners began to break down and, on one occasion, she was told to resign or be dismissed. Following this altercation, the claimant suffered a major epileptic seizure.
Her GP issued a fit note stating she was suffering from work-related stress and therefore should stay away from work for the time being. However, the shop asked her to return anyway, discussed her private business with local customers in the village and later even threatened to sue her for her actions. The claimant started to feel even worse as a result and a second fit note was later issued, reaffirming that she was suffering from stress.
The claimant’s role was later replaced. As a result, she brought numerous claims to the employment tribunal, including unfair dismissal due to the lack of procedure followed in dismissing her and discimination arising from disability.
The tribunal upheld her unfair dismissal claim, however, they dismissed her disability claim.
From what the tribunal could establish, the claimant had been treated unfavourably due to her taking time away from work following the altercation, with the shop committing numerous acts such as demanding she return to work, changing her role and then dismissing her anyway. However, before they could address the conduct of the shop’s owners, the tribunal outlined that they needed to first determine the ‘something arising’ in consequence of the claimant’s disability.
The tribunal ruled that the reason behind this absence, and therefore the ‘something arising’, appeared to be workplace stress and not her epilepsy, which ultimately served to reject her claim. This was because workplace stress is not a disability. Although the claimant asserted in her evidence that her epilepsy had been exacerbated by the shop’s treatment of her and had therefore contributed to her absence, the GP made no mention of her epilepsy in either of the fit notes issued. It simply stated she needed time away from work due to stress.
On the basis of the evidence available to them from the GP, the tribunal therefore dismissed her claim. The claimant appealed against this decision to the EAT.
The main crux of the claimant’s argument was that her absence had more than one causal element, meaning it still was related to her epilepsy. Potentially, the ET had erred in concluding that this was not supported by the medical evidence, and that they could not reach this conclusion even with evidence from the claimant.
The EAT dismissed her appeal, finding that the tribunal had made the correct decision with the evidence available. They stated that the tribunal needed to consider if her disability was related to her absence when it appeared she was off work due to stress. In other words: what was the specific cause of her absence, which had then led to her unfavourable treatment?
The EAT outlined that tribunals can establish this cause by referring to medical evidence and evidence from claimants. However, as seen here, if there is a conflict between the two, it is not surprising that the tribunal will prefer evidence from a medical practitioner. Therefore, her claim was dismissed.
In disability discrimination claims of this nature, it is up to the claimant to demonstrate that their treatment is related to their disability; if they are unable to do this to an extent that satisfies the tribunal, the case will not go their way.
However, organisations should still be wary when approaching situations concerning disabled staff who do go on long-term sickness absences. Regular contact must be maintained with them and they should not be expected to return to work despite not feeling ready to do so and having medical evidence to back this up. As seen here, if the claimant had been able to successfully link her disability to her treatment, the organisation could have been facing a costly discrimination pay-out.
This case also reminds organisations that they need to follow appropriate procedures when dismissing an individual, even if the working relationship is breaking down. Here, they clearly still wanted the claimant to work for them despite these issues, meaning a finding of unfair dismissal was all the more likely.