When an employee suffers unfavourable treatment because of “something” which arises in consequence of their disability, this is disability discrimination, unless the employer can show the treatment is a proportionate means of achieving a legitimate aim. It is well established that there must be a causal connection (or more colloquially “a direct link”) between that “something” and the disability. In this case, the issue was whether there was a causal connection between the warning given to an employee for refusing to obey a reasonable order, and her disability.
Ms Wood worked in a warehouse packing items at a fixed workbench. She suffered osteoarthritis which got worse in cold, damp weather. When her employer changed work practices requiring staff to move benches to “follow the work”, Ms Wood refused to work at the end benches near the loading doors as she thought it was colder and damper there. Extensive investigation showed that her fears were unfounded. The employer considered Ms Wood’s refusal to obey the instruction was unreasonable and so issued her with the final warning which she considered to amount to discrimination arising from her disability.
The EAT found that because Ms Wood was not actually being required to work in cold, damp conditions, there was no direct link between the warning and the underlying disability, and so there was no disability discrimination.
This case shows that when there is concern that a person with a disability might be adversely affected by a new policy or practice, employers should investigate whether this is the case, rather than just taking the employee’s word for it. If the investigation shows that the employee would not be impacted, the employer will be in a stronger position to impose the policy/practice.
Not every case will come down to hard facts. If Ms Wood had been able to show that her judgement was impaired as a result of her disability then the tribunal might have been able to find a connection between her erroneous belief that the benches near the loading bays were cold and damp, and her disability, and that would have meant that the sanction of the warning for her unreasonable behaviour would have amounted to discrimination. Although justification is available as the ultimate defence, it is better not to get to that point at all.
iForce Ltd v Wood UKEAT/0167/18, 3 January 2019