The Employment Appeal Tribunal held in a recent case, Pilkington UK Ltd v Jones, that a mistaken belief can constitute “something arising” in consequence of disability for the purpose of a claim under section 15 of the Equality Act 2010.
The facts of the case involved a long-serving employee who held the role of team leader at a glass company. He was signed off work on grounds of mental health having suffered from a debilitating shoulder condition. The employer’s occupational health provider had concluded that the employee’s shoulder condition permanently prevented the employee from undertaking manual work but he may be able to return to a non-manual role in the future. Whilst the employee was on sick leave, his employer received information he had been spotted wearing work boots. This prompted them to engage a private surveillance company to monitor him whilst he was on sick leave, which produced footage showing the employee apparently working on a local farm and engaging in physical activity including loading a bag of potatoes on a truck and handling a hose with his hand on a tap. The respondent moved to swiftly dismiss the employee on grounds of gross misconduct namely a belief that he was undertaking secondary paid employment. The employee later explained that he had been visiting the community farm as part of the therapy for his mental health condition, as facilitated by his GP.
The employee lodged claims including a claim under section 15 of the Equality Act 2010 of unfavourable treatment “because of something arising in consequence of disability”. The employee argued that the “something arising” was his employer’s erroneous belief that he was engaged in physical activity whilst on sick leave. The employer argued that there could not be an objective finding that a belief was “something arising” from disability because a belief is subjectively held, and “something arising” requires an objective finding. The Employment Appeal Tribunal disagreed and held that there can be an objective finding that a particular belief arises from disability. Although a belief is subjectively held it can be objectively recognised.
This case delivers a warning to employers. Based on these facts, there were three potential “something arisings” in consequence of disability for the purpose of a claim under section 15 of the Equality Act 2010:
- The use of private surveillance on the employee
- The employer’s erroneous belief that he had engaged in physical work
- The employee’s sickness absence
Employers should tread carefully when dismissing employees on long-term sick leave in circumstances where the evidence relied on or the employee’s limitations/prognosis are unclear or subject to interpretation.