In a recent decision involving a warehouse worker in Rotherham, the EAT has set an important limit on the extent of an employer’s liability for disability discrimination. It has ruled that the worker’s mistaken belief that a move to a different part of the warehouse would damage her heath did not protect her when her employer disciplined her for refusing to move.
This is the latest of a number of recent cases exploring the scope of section 15 Equality Act. Section 15 says that an employer is liable for disability discrimination if it treats a disabled person unfavourably “because of something arising in consequence of” that person’s disability and the unfavourable treatment cannot be justified.
In this case the claimant had osteoarthritis, and there was medical evidence that working in cold and damp conditions would aggravate her symptoms. The dispute arose when a new working system was implemented which required her to spend at least some of her day working at benches near the warehouse’s loading doors. She was concerned that it would be colder and damper working at these benches.
Before implementing the new system her employer had made a number of adjustments, including installing a wind chill temperature thermometer and providing a local windbreak. It was therefore able to monitor the air temperature. It established that the air temperature on the outer benches near the loading bay was no different from the temperature at benches further inside the warehouse. However, the claimant refused to accept this and was given a written warning for failing to move to the outer benches.
The Employment Appeal Tribunal said that the link between the unfavourable treatment (ie the written warning) and the claimant’s disability was not sufficiently close for the employer to be liable under section 15 Equality Act. Although the written warning was linked to the claimant’s belief about the health risks of moving benches, that belief could not be “something arising in consequence of” her disability, since the employers had been able to demonstrate that belief was mistaken.
The EAT’s conclusion may seem a matter of common sense. However, this decision needs to be seen in the context of earlier decisions on the scope of section 15, including City of York v Grosset. In that case the Court of Appeal confirmed that the dismissal of a teacher for showing an inappropriate film to his GCSE class was disability discrimination because he had been able to show that the error of judgement was something arising from his disability. Although his disability was physical, he produced medical evidence to show that because of his disability he was more liable to suffer workplace stress because of an excessive workload, and it was this stress that had led to his error of judgement.
In Grosset, therefore, there were a number of links in the chain which linked the claimant’s error of judgement with his disability. What this latest decision makes clear, however, is that each link in the chain needs to be objectively verified. A claimant is unlikely to able to establish the necessary causal connection if they have a mistaken belief about the impact of working conditions on their disability, unless their disability has itself contributed to that error (for example by impairing their judgement).