Can unfavourable treatment arise in consequence of a mistaken belief?
No, held the EAT in iForce v Wood.
The Claimant was a packer working at a fixed workstation. He suffered from a disability, osteoarthritis, which was exacerbated by damp and cold. When asked to move between benches she refused saying it would exacerbate her disability. She was issued with a warning which she said was unfavourable treatment arising in consequence of disability. A first instance the tribunal agreed.
The EAT disagreed. Whilst section 15 requires a broad approach, the test is an objective one requiring a connection between the treatment and disability. There need not be an immediate nexus between the ‘something’ and the disability but there must be some connection. Did the ‘something’ (the warning) arise from the disability? No, it arose from the Claimant’s mistaken belief that moving benches would worsen her condition. There could be no unfavourable treatment arising from a misplaced perception that was not established on the facts.
This blogpost by Karen Jackson first appeared on Daniel Barnett’s Employment Law Bulletin on 20.3.19.