It is unlawful for an employer to treat an employee unfavourably because of something arising from their disability, unless it can show that the treatment is objectively justified because it is a proportionate means of achieving a legitimate aim. The EAT has recently considered: could the dismissal of an employee, due to the employer’s mistaken belief that he was working on his friend’s farm whilst he was off sick, amount to something ‘arising from’ disability?
The employee, J, was disabled because of radiation induced neuropathy, which affected his dominant right shoulder. He had become absent from his work at a glass manufacturer in November 2018, after his condition progressively deteriorated. An occupational health report said J was not currently fit for duties due to ‘very disabling’ pain and loss of function in his right arm, that this would permanently prevent him from doing manual work, but he would be able to undertake a non-manual role once his pain became sufficiently controlled.
In March 2019, the employer received a ‘tip-off’ that J had been seen wearing work boots. Surveillance agents were hired to investigate if J was working elsewhere. In the surveillance footage, J was seen accompanying his friend, who was a farmer, in a transit van delivering products (J was seen holding a supermarket sized bag of potatoes, but the farmer and his son carried out the deliveries) and passing a hose to the farmer with his hand on a tap.
The employer triggered a disciplinary process. The employer rejected J’s explanation that he had visited his friend’s farm as part of his recovery to reduce the impact his disability was having on his mental health. J had almost 36 years’ service when he was dismissed in October 2019 for gross misconduct, for undertaking physical activity at his friend’s farm whilst he was off sick.
J brought various claims, including disability discrimination. The employment tribunal hearing J’s claims considered the employer’s decision to instruct private investigators to covertly record J and noted that: ‘…it appears that little consideration was given concerning the proportionality of the investigation and the extent to which [J’s] privacy should be interfered with…the Tribunal does find it surprising that a more nuanced and measured approach was not considered when commencing this investigation. After all, this sort of activity does involve interference with human rights and an individual’s reasonable expectation of privacy. An employer should naturally carry out these activities in a limited, necessary and proportionate way.’ Having watched the covert film footage, the tribunal remarked: ‘What was noticeable about their content, was how unremarkable they were…The Tribunal did not see it as a particularly physical activity’. The tribunal upheld J’s disability discrimination claim, holding that he had been treated less favourably for a reason arising from disability.
The EAT dismissed the employer’s appeal and upheld the tribunal’s decision. The EAT noted that the two aspects of causation in discrimination arising from disability cases are:
- Something arising from the disability (which requires an objective analysis); and
- A consequential treatment that is unfavourable (which is a subjective consideration).
It is possible for a subjective state of mind to be objectively observed, and for that state of mind to lead to a reaction which is a further subjective state of mind the result of which is unfavourable treatment.
Whilst the ‘something arising from the disability’ will usually be an external factor (e.g. the employee’s disability-related absence), this is not necessarily always the case. Here, the tribunal had been entitled to hold that the employer’s underlying reason for treating J that way that it had was not the fact that he was unfit for work, but instead its mistaken belief that J had been engaged in physical activity while he was off sick from work. This erroneous belief amounted to ‘something arising’ from J’s disability. Alternatively, the tribunal would have been entitled to conclude that J’s sickness absence and the influence it had had on the employer’s actions, was the ‘something’ that arose from his disability and could have upheld his claim on that basis.
Comment re covert monitoring: Covert monitoring is very intrusive. Workers have legitimate expectations to have a degree of privacy at work and may have an even greater expectation of privacy outside the workplace. Therefore, covert monitoring should only occur in exceptional circumstances; its use must be justified and proportionate, and safeguards should be put in place to minimise the invasion of the worker’s privacy (Ribalda and ors v Spain  ECHR 752). Before ordering covert surveillance of a worker, the employer should consider the checklist in the ICO’s Employment Practices: monitoring at work draft guidance.
For further information, please contact:
Emma Ahmed, Hill Dickinson