C had osteoarthritis which she believed was exacerbated by damp and cold conditions. In 2016 R introduced a rotation that required her to work near the entrance door to a warehouse. C was unwilling to work near the door because she believed, mistakenly, that the area was colder and more damp. R investigated thoroughly. Its investigations revealed that there was no material difference in the temperature and humidity levels by the door but it did make some adjustments such as providing C with thermal underwear. C continued to refuse to work near the door and was given a final written warning. She brought a s.15 claim to the ET.
The ET accepted that C was affected by colder temperatures and held that C had established a link between her disability and her final written warning. The ET held that “at the time of her refusal to comply with the instruction, the claimant held a genuine belief that she would have been adversely affected working closer to the doors. And that it was a reasonable belief at that time. That is because the claimant did not have extensive temperature readings, but knowing that she was vulnerable to colder weather and seeing benches furthest from the wall but nearer the doors she thought that it would be colder in that part of the premises. She had worked in the premises for many years and would have formed a view about which parts were colder… We are satisfied that the claimant’s belief that working at end becomes was a cooler environment was a cooler environment than the furthest benches was a reasonable one.”
Accordingly, the ET held that C did not refuse “for any other reason than she believed compliance would adversely impact upon her health: that is a condition of osteoarthritis, which was a disability.”
The EAT allowed the appeal. Citing Grosset the EAT noted a number of things:
- the law required an examination of what was in R’s mind to establish whether the unfavourable treatment, in issue in the case, occurred by reason of A’s attitude to the relevant “something”;
- the fact that the causal link between the something and B’s disability is an objective test;
- the employer did not need to be aware of the link between the something and the disability.
The EAT cited para.5.9 of the EHRC Code of Practice which refers to a person who loses her temper at work as a result of severe pain caused by cancer and that s.15 “does not require an immediate causative link between the something and the Claimant’s disability.” The EAT noted that there could be several links in the chain of causation.
The EAT identified that the unfavourable treatment was the final written warning which was imposed because of the Claimant’s refusal to comply with a management instruction to work at all the benches in the warehouse, including those nearest the bay doors. The EAT went on to hold that C’s belief could not be said to be a direct consequence of her disability but asked whether there was a looser causal connection. Here the EAT said that the ET’s reasoning was inadequate and that it had not explained the link sufficiently.
R argued that the false belief broke the chain of causation. The EAT did not accept that a false belief would inexorably do so, citing an example of where such a belief arose because of the symptoms of a disability (and the example in the Code of Practice). The EAT also noted that R itself allowed the internal appeal against the final written warning (changing it to a written warning) because it was felt that the Claimant had acted at the time when she had been worried and under a degree of stress.
The EAT stated that the test was objective and could not be determined by zR’s view. The ET at first instance had not explored C’s explanation for her erroneous beliefs. However, rather than remitting the case, the EAT held that on the ET’s findings there was no causal connection.
In the case of Risby v London Borough of Waltham Forest Mr Risby’s employer arranged a conference in an inaccessible venue. On finding out, Mr Risby, who was disabled and unable to attend, lost his temper violently. He was dismissed as a result. The EAT held that the requisite s.15 connection had been established; “if he had not been disabled by paraplegia he would not have been angered by the Respondent’s decision to hold the first workshop in a venue to which he could not gain access.”
The misjudgment in Grosset was connected to disability in a different way. The disability caused stress which in turn caused a misjudgment – this was a loose symptomatic result of the disability. The example given in the Code also relies upon a link between a symptom of the disability (pain) and the loss of temper. No such symptomatic link was identified in Risby. Mr Risby lost his temper because the Respondent had arranged a meeting in an inaccessible venue. This was clearly a link – there was no further examination of whether the loss of temper was understandable or a response to a failure to make reasonable adjustments. Neither was there any suggestion that the ET should have weighed up the reasonableness of C’s response in an objective fashion.
The EAT in iForce did not adopt that approach. In concluding, Eady J held that since C’s belief about the temperature was mistaken there could not be a link with her disability. This does not appear to accord with the facts: had the Claimant not had osteoarthritis, she would not have been concerned about sitting at any of the benches. Her fears about her health were plainly and obviously connected to her disability. It is unclear why the fact that those fears were unfounded should change the assessment of whether there was a causal link (particularly when the ET held that her belief was reasonable).
The description of the objective test in iForce is problematic. What is it an objective test of? It should presumably be a test designed to identify whether there is a connection as a matter of fact? Where an employee acts out of fear or concern or where there is some other form of behavioural/motivational link is the test designed simply to identify whether there is a genuine connection or to assess whether the connection is objectively reasonable? How would this latter test work in a case such as Mr Risby’s?
In this case the EAT appears to adopt the latter approach. The natural result is that it required, at paragraph 43, a symptomatic link between the disability and the erroneous belief. In its absence the belief was not an objective cause of the C’s conduct. But why should a claimant’s fears about the way in which he/she might be affected in the workplace be required to be either rational, correct, or result from a symptom of disability? A better approach might have been to find that the link was established but that the employer’s treatment was justified and a proportionate means of achieving a legitimate aim.
Further clarification may now be required by the higher courts.