Disability discrimination – employers beware!

A recent Employment Appeal Tribunal case focused on a discrimination arising from disability claim. This case was unusual because it was based on the employer’s subjective belief – that was actually held in error – regarding the employee’s activities while on sick leave. This case also highlights the wide approach that can be taken in a discrimination arising from disability case, which enabled a claim in these circumstances to qualify as discriminatory.

The disciplinary process

The respondent is a manufacturer of glass and the claimant was employed from 1 November 1983 until his dismissal for gross misconduct on 14 October 2019. The claimant was legally disabled in respect of his condition, radiation induced neuropathy,  and spent time on sick leave from 22 January 2018. During this time the claimant had ill-health review meetings and the prognosis provided by Occupational Health in early 2019, was that the condition would not improve or worsen. This meant the claimant was permanently unable to carry out manual work, however it would be possible for the claimant to do a non-manual role once the pain from his condition was controlled.

In March 2019, it came to the respondent’s attention that the claimant had been spotted wearing work boots. In light of this, they had a suspicion that the claimant was working elsewhere while receiving sick pay. The respondent engaged surveillance agents who filmed the claimant on four occasions. From the footage the respondent was able to observe the claimant accompanying a farmer – who was his friend – during the delivery of produce and in a greenhouse. The footage showed limited involvement by the claimant. Following a review by the respondent’s management however, they considered there was sufficient cause to arrange an investigation meeting.

The disciplinary process was progressed on the basis of the allegation that the claimant was working in secondary employment while on sick leave whereas the claimant’s position was that being at the farm helped his mental health. The respondent ultimately found that the claimant had in fact carried out physical activity while on sick leave and as a result the claimant was dismissed for gross misconduct.

The claimant brought claims of wrongful dismissal, unfair dismissal and disability discrimination under s.15 Equality Act 2010. The focus of the Employment Appeal Tribunal was on the s.15 Equality Act 2010 claim.

What were the findings?

The Tribunal found that the respondent had subjected the claimant to disability discrimination, by dismissing – the unfavourable treatment – the claimant due to the belief that the claimant had engaged in physical activity while on sick leave – as this matter arose from the claimant’s disability.

What are the key take away points from this case?

• Ensure that the disciplinary manager approaches the case with an open mind and that a thorough investigation is completed before any outcome is determined
• Be aware that an employee may have a credible reason for engaging in particular activities while they are on sick leave. In this case, the claimant’s position was that it was helpful for his mental health
• Ensure that any action taken is supported by up to date medical advice
• Remember to fully consider whether there are any alternative, more proportionate steps that can be taken, and if not outline in full the reasons for this
• Be alert to the wide ranging scope of a discrimination arising from disability/s.15 Equality Act 2010 claim and consider taking legal advice before taking any action.