Section 15 of the Equality Act 2010 states that it is discrimination to treat a worker unfavourably because of “something arising in consequence of” their disability. In Pilkington UK Ltd v Jones, the EAT held that an erroneous belief held by the company was sufficient to constitute the “something arising” necessary to prove discrimination.
Mr Jones’ union, UNITE, instructed Thompsons to act on his behalf.
Basic facts
Mr Jones, who started work for Pilkington in 1983, developed a condition known as radiation-induced neuropathy. As a result of this “very disabling” condition, he went on long-term sick leave.
Having received information that made the company suspect he was working a second job, his employer engaged surveillance agents. The footage they gathered showed Mr Jones accompanying a farmer (who was his friend) and his son delivering produce in a transit van which involved Mr Jones handling a small plastic bag with a retail sized bag of potatoes. The deliveries were carried out by the farmer or his son. Further footage showed him in a greenhouse passing a hose to the farmer and with his hand on a tap.
Following a disciplinary hearing, he was dismissed for gross misconduct. Mr Jones lodged a tribunal claim arguing that his attendance at the farm was to help his deteriorating mental health which arose from his physical impairment. As such, Pilkington had subjected him to unfavourable treatment “because of something arising in consequence of” his disability contrary to section 15 of the Equality Act 2010.
Tribunal decision
Relying on the decision in City of York Council v Grosset (LELR 582) which held that a dismissal can amount to unfavourable treatment under section 15 even if the employer did not know that the disability caused the misconduct, the tribunal agreed with Mr Jones that he had been dismissed because of something arising in consequence of his disability. In this case, the “something arising” was Pilkington’s belief that he had been working at the farm whilst on sick leave, a belief that led to his dismissal.
The company appealed, arguing that the “something arising” from the disability required an objective analysis; while the unfavourable treatment because of the disability required a subjective consideration of the basis for the treatment.
EAT decision
The EAT held that the question to be answered in this appeal was whether a “belief” could constitute “the something arising” under section 15. Whilst acknowledging that any belief must, naturally, be a subjective state held in the mind of the individual who had that belief, the EAT acknowledged that it might seem contradictory for the tribunal to have concluded that Pilkington’s belief in Mr Jones’ wrongdoing could constitute the “something arising”.
However it went on to reason that even though a belief is subjectively held, “it can be objectively recognised in the same way that a subjective intent can be objectively observed from surrounding facts”.
In this case, a key element of information was Mr Jones’ absence due to sickness, caused by his disability. Whatever erroneous beliefs were held by Pilkingtons, this fact was a substantial part of the reason that led to his dismissal. Given that analysis, the decision to dismiss was substantially because of Mr Jones’ sickness absence and erroneous beliefs about his disability. That approach satisfied the requirements of section 15 and did not rely on Pilkington’s state of mind as the “something arising”.
The tribunal was therefore correct to conclude that a belief can be properly categorised as “something arising” from disability and dismissed the appeal.
Comment
This case illustrates the importance of the additional protection disabled persons are afforded under section 15 of the Equality Act 2010. Mr Jones’ claim would not have succeeded under any of the other forms of discrimination even though the behaviour of the employer was clearly discriminatory. Without the additional protection, it would have created a significant injustice for a long-serving employee who was doing everything he could to return to work but was unable to, at that time, due to his physical condition.