DISABILITY DISCRIMINATION – Disability related discrimination
The Claimant was employed by the Respondent to work in its warehouse. She was a disabled person for the purposes of the Equality Act 2010 (‘EqA’) by reason of suffering osteoarthritis. It was her perception (supported by her GP) that her symptoms worsened in cold and damp weather. When the Respondent changed its working practices, and asked that the Claimant (and other warehouse workers) be prepared to move between benches, including those situated nearest the loading doors, the Claimant refused because she believed this would require her to work in colder, damper conditions and thus exacerbate her symptoms. The Respondent’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).
The Claimant brought ET proceedings, complaining that this amounted to disability discrimination contrary to section 15 EqA. The ET upheld that claim, finding that, while the Claimant’s belief in the temperature and humidity differences in the warehouse was mistaken, her refusal to accept the Respondent’s instruction was because she believed compliance would adversely impact on her health and that was a condition of osteoarthritis, which was a disability; the essential components of section 15 EqA were thus established. The Respondent appealed.
Held: allowing the appeal and setting aside the ET’s Judgment on the claim under section 15 EqA.
A broad approach was to be adopted when determining whether the ‘something’, that had led to the unfavourable treatment, had arisen in the consequence of the complainant’s disability for the purposes of section 15 EqA. It was an objective test and the requisite connection could arise from a series of links (City of York v Grosset  EWCA Civ 1105 and Sheikholesami v University of Edinburgh  IRLR 1090 EAT applied). That said, there still had to be some connection between the ‘something’ (here the refusal to obey the Respondent’s instruction to work at benches near the loading doors) and the Claimant’s disability (osteoarthritis); the former had to arise in some way as a consequence of the latter. Allowing that the Claimant’s perception that her condition might worsen if she was required to work in colder and damper conditions might arise from her disability, the ET had not found that this was what the Respondent was requiring her to do. The ET had accepted that the evidence showed that, objectively speaking, there was no material difference in the conditions at the different work benches; it had found that the Claimant was mistaken in her belief in this regard and had failed to explain how it had then concluded that this erroneous belief arose in consequence of her disability. This was not simply a failure to provide adequate reasons. Allowing that an ET might find that an employee’s judgment was impaired as a result of (say) stress or pain suffered in consequence of disability, that was not how the Claimant had put her case in these proceedings (either before the ET or on appeal) and it was not an inference that might legitimately be drawn from the ET’s reasoning. The ET’s written reasons revealed no basis for finding a causal connection between the Claimant’s disability and the erroneous belief that had led her to refuse to accept the Respondent’s instruction. In the circumstances, the section 15 claim must fail.
 UKEAT 0167 – 18 – 0301
England and Wales
Updated: 14 January 2021; Ref: scu.635151