Earlier this month, the Employment Appeal Tribunal handed down its decision in the case of Pilkington UK Ltd v Jones, a case which concerned a claim for discrimination arising from a disability under section 15 of the Equality Act 2010.
In this case, the Claimant, who had been employed since 1983, developed a shoulder condition in 2018 that offered no prospects of recovery. Initially placed on light duties, he was later signed off on long-term sick leave. Occupational Health assessments indicated that he could not perform manual work permanently but could take on a non-manual role once the pain was controlled.
In March 2019, whilst the Claimant remained off work on sick leave, the employer received a report that the Claimant was seen wearing work boots, raising concerns that he might be working elsewhere. To investigate further, the employer engaged surveillance agents who filmed the Claimant engaging in physical activity. Based on this evidence, the employer treated the matter under their disciplinary procedure, ultimately leading to the Claimant’s dismissal for gross misconduct due to its belief that he was undertaking physical activity while on sick leave.
The Claimant brought a claim (amongst other claims) for discrimination arising from a disability, arguing that the decision to dismiss him was unfavourable treatment in connection with his shoulder condition, a disability for the purpose of the Equality Act 2010.
The Employment Tribunal found in his favour, concluding that his dismissal was because of something arising in consequence of his disability, that the ‘something arising’ in this case was the employer’s belief that the Claimant engaged in physical activity while on sick leave. The subsequent dismissal was held to be unfavourable treatment and a direct consequence of that belief.
The employer appealed this decision, but the Employment Appeal Tribunal dismissed the appeal and upheld the Tribunals decision, re-iterating that there are two elements of a claim under section 15; firstly, something arising from the disability, and secondly, a consequential treatment that is unfavourable. The Employment Appeal Tribunal was satisfied that both elements of this claim had been met on the facts of the case.
So, what can employers learn from this decision?
The decision of both the Tribunals provides a clear understanding of what can constitute ‘something arising’ from a disability.
Employers should therefore exercise caution when making decisions based on their beliefs about an employee’s disability-related activities, as such beliefs can be deemed ‘something arising’ from a disability, which as demonstrated in this case, would give rise to a claim under section 15 of the Equality Act 2010.
Whilst this may perhaps an unusual scenario, claims for discrimination arising from a disability are not always immediately obvious. An employer may not always realise that a decision made by them is connected to a disability, as it is one step removed from being a direct act of discrimination.
Employers would therefore be well advised to seek legal advice when dealing with dismissal of an employee who may have a disability.
If you require any assistance or would like to discuss any specific concerns regarding disability in the workplace, please do not hesitate to contact a member of the employment team at firstname.lastname@example.org.
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