Discrimination Arising from Disability
The Employment Appeal Tribunal (EAT) has found that an incorrect belief that a disabled employee was working whilst off sick, was discrimination arising from disability.
Background
In the case of Pilkington UK Ltd v Jones, Mr Jones was a long-standing employee of Pilkington. He developed a shoulder condition that amounted to a disability and went on long-term sick leave. The medical advice was that he would be permanently unable to return to manual duties.
During Mr Jones' sick leave, Pilkington received information that he had been seen wearing work boots. As a result, Pilkington put Mr Jones under surveillance. The surveillance footage showed Mr Jones accompanying a friend in a transit van delivering products, although not making any deliveries himself. He was also recorded passing a hose to his friend. This led Pilkington to conclude that Mr Jones could be working elsewhere whilst on sick leave. It dismissed Mr Jones following a disciplinary procedure, and in response Mr Jones brought a Tribunal claim, alleging that Pilkington had treated him unfavourably because of something arising in consequence of his disability.
The Tribunal upheld the claim and Pilkington appealed to the EAT.
EAT Decision
The EAT upheld the Tribunal's decision. The EAT observed that the case was unusual because it was based on the employer's belief, rather than objectively provable fact. Nevertheless, Pilkington's belief that Mr Jones was engaging in physical activity during his sick leave was 'something arising' in consequence of his disability. In order for the claim to succeed, there needed to be something arising from the disability, and also a consequential treatment that is unfavourable. Mr Jones' dismissal was the unfavourable treatment.
Learning Points
This case is a useful example of how a subjectively held belief about disability can be capable of objective analysis for the purpose of a claim for discrimination arising from disability. Employers finding themselves in similar scenarios should ensure that any action they take is properly supported by the evidence and by medical advice.