Wrongly held belief about performing physical activity while on sickness absence led to disability discrimination

EAT confirms employer’s belief can be ‘something arising in consequence of disability'.

Section 15 of the Equality Act 2010 (EQA) protects workers and employees against unfavourable treatment for ‘something arising in consequence of’ a disability, where the treatment cannot be justified as a proportionate means of achieving a legitimate aim. 

A common example is when an employee is disciplined for taking sickness absence in breach of the employer’s absence policy when the absence is disability-related and the disciplinary action cannot be justified. 

When deciding whether an action is ‘something arising from’ a disability, the tribunal will first apply an objective test, considering what was the ‘something’ and whether this ‘something’ arose from a disability. It will then decide whether the less favourable treatment was as a consequence of the ‘something’, exploring the subjective state of mind of the decision-maker. 

A recent case has considered whether an employer’s wrongly held belief about an employee is capable of being ‘something arising from’ a disability. 

Case: Pilkington UK Ltd v Jones [2023] 

Mr. Jones worked for PUL for many years. In 2018, he developed a painful shoulder condition due to damage from radiotherapy from which it was determined there was no prospect of recovery. Mr Jones also suffered from anxiety and depression. PUL put Mr Jones on light duties but from November 2018 he was then signed off work on long-term sick leave. Following an occupational health referral it was determined Mr Jones would not be able to undertake manual work, but would be able to return to a non-manual role once the pain was under control. 

In March 2019 PUL suspected Mr Jones was working for someone else and employed surveillance agents to film Mr Jones. The agents obtained footage of Mr Jones in the company of a friend, a farmer, in a van delivering products. In the footage, Mr Jones could be seen handling a small plastic bag with a retail sized bag of potatoes although the actual delivery work was carried out by the farmer. 

In PUL’s opinion, the recordings initially gave cause to suspect Mr Jones was working for someone else.  During the disciplinary process, Mr Jones argued that he was accompanying his friend to improve his mental health. PUL concluded that Mr Jones had undertaken physical activity during sickness absence in breach of its sickness absence policy and dismissed him for gross misconduct. 

In response, Mr. Jones brought a claim before the Employment Tribunal, alleging unfair dismissal, wrongful dismissal and discrimination arising from disability in breach of s.15 EQA. The Employment Tribunal upheld all of Mr Jones’s claims. 

The Employment Tribunal found that Mr Jones was disabled by reason of his depression and anxiety and it determined that the something arising under s.15 EQA was that PUL believed that Mr Jones had engaged in physical activity while off work sick and that his dismissal as a consequence of that belief amounted to unfavourable treatment. 

In response to the Employment Tribunal's decision, PUL appealed on the basis that the Tribunal had erred in finding its belief amounted to ‘something arising’ in consequence of Mr Jones’s disability having wrongly applied a subjective approach to an objective question. 

The Employment Appeal Tribunal agreed with the findings of the Employment Tribunal.  The EAT highlighted the correct test under s.15 EQA as set out above. 

Noting that the case was unusual, the EAT recognised that the Tribunal had specifically rejected external factors put forward by Mr Jones, such as his sickness absence, to find it was PUL’s belief that was the ‘something arising’. The EAT commented that, although a belief is subjectively held, it can be objectively recognised.  If the disability is known about by the employer, there can be an objective finding that a particular state of mind or belief arises from the disability. 

The EAT also held that the Tribunal would have been entitled to find that the combination of the sickness absence of Mr Jones and the employer’s belief that he was engaging in physical activity during that absence was the ‘something’ that arose from the disability and led to a decision to dismiss. That would satisfy the requirements of s.15 EQA and did not rely on PUL’s state of mind as the ‘something arising’. 

Comment 

This case is a reminder that employers need to exercise caution when managing situations involving employees with disabilities. Employers should avoid making assumptions about what an employee may or may not be doing whilst absent from work due to sickness and ensure that any decisions are based on substantial evidence. In this situation, PUL failed to consider the broader context of Mr Jones’s absence, and jumped to conclusions about activities he was undertaking while sick, failing to explore the possibility that the activities in question were undertaken to improve his mental health. 

That said, this is an unusual case with a confusing application of objectivity to an ostensibly subjective issue (belief). However, case law has indicated that incorrect beliefs about what a disabled employee can and cannot do can also be something arising from a disability and lead to s.15 EQA claims.  See our 2019 article ‘Stereotypical assumptions about a health condition could be disability discrimination – even if the employee is not disabled’ for more on this.