The EAT has upheld an employment tribunal's decision that an employer who dismissed a disabled employee because of its mistaken belief that he was doing physical work while on sick leave had discriminated against him for something arising from his disability.
THE FACTS
Mr Jones worked for Pilkington UK Ltd, a glass manufacturer. He suffered from a painful condition affecting his shoulder following treatment for cancer. He was initially placed on light duties and was later signed off work on long term sickness absence because of his mental health. Medical advice was that Mr Jones would not be able to perform manual work again, but once the pain had been controlled sufficiently, he would be able to return to work in a non-manual role. There was no dispute that Mr Jones was disabled. Pilkington was told that Mr Jones had been seen wearing working boots while on sickness absence. It suspected that he might be working elsewhere, and it decided to investigate, using surveillance agents. Surveillance showed Mr Jones accompanying his friend, a farmer, in a transit van which was delivering produce. Mr Jones handled a small plastic bag with a retail sized bag of potatoes. He did not carry out the deliveries. The footage also showed Mr Jones and his friend in a greenhouse, and Mr Jones passing a hose to the farmer, with his hand on a tap. Mr Jones' manager thought, from this footage, that Mr Jones might have another job.
Following an investigation meeting and a disciplinary process, Mr Jones was dismissed for gross misconduct for undertaking secondary employment during sickness absence when he was supposedly incapable of work.
Mr Jones claimed in the employment tribunal (among other things) that, in dismissing him, Pilkington had discriminated against him for something arising from his disability. He argued that the "something arising" was Pilkington's erroneous belief that he was engaged in physical activity while off sick The employment tribunal upheld his claim. The dismissal was a consequence of its belief and amounted to unfavourable treatment.
Pilkington appealed to the EAT, which upheld the tribunal's decision that Mr Jones had suffered discrimination.
One of Pilkington's grounds of appeal was that the employment tribunal had wrongly approached the test of whether Pilkington's erroneous belief that Mr Jones was working arose from Mr Jones's disability. This must be an objective test. Pilkington argued that a belief in something could not be objective. The EAT concluded that, it is possible for a subjective state of mind to be objectively observed or recognised, and for that state of mind to lead to a reaction resulting in the unfavourable treatment arising from a disability. The EAT therefore held that the tribunal had not wrongly approached this test.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This case shows that establishing whether "something arises from" a disability is a very low bar. Employers who take action against a disabled employee because they believe they are malingering risk successful claims of discrimination arising from a disability if they cannot objectively justify the action. Employers should act cautiously particularly where the extent of what the employee can and cannot do is subject to interpretation.
Pilkington UK Limited -v- Mr A Jones [2023] EA-2022-000431-BA
