Tel: 01225 740097

Dismissal of employee whom employer believed was faking illness amounted to discrimination

Posted by TonyBrownEmploymentSolicitor on December 26, 2015

In a decision which demonstrates the low threshold for claimants who bring claims for discrimination arising from disability, an employee who was dismissed because her employer genuinely, albeit mistakenly, believed that she was falsely claiming to be ill suffered discrimination arising from disability.

Background

The Claimant in that case suffered from stress and had been diagnosed with an abnormally fast heart rate as a result of which she had long periods of sickness absence from work. After a poor performance review, the Claimant went off sick for the final time with stress.  

The employer tried to arrange meetings with the Claimant to discuss her absence but she said that she would not attend any meetings as she felt bullied.

After a report that the Claimant had been seen working in a pub while off sick, the employer required the Claimant to attend a disciplinary hearing. She did not attend and the disciplinary hearing went ahead with only the Claimant’s representative in attendance.

The Claimant was dismissed for gross misconduct following the hearing.

Claims

The Claimant brought claims for unfair dismissal and discrimination arising from disability under s.15 of the Equality Act 2010.

Relevant legal principles

S.15 of the Equality Act makes it unlawful to treat a disabled person unfavourably because of something arising in consequence of their disability. An employer has a defence if it can prove that the treatment was a proportionate means of achieving a legitimate aim, or the employer did not know and could not reasonably have known that the person was disabled.  

For example, a customer who is refused service in a pub because they are slurring their words, as a result of having had a stroke, will potentially have suffered discrimination because of something arising as a consequence of their disability under s.15 of the Equality Act.  

Discrimination arising from disability only requires the disabled person to show they have experienced unfavourable treatment because of something connected with their disability. It is still necessary to demonstrate a connection between whatever led to the unfavourable treatment, in this example, the slurring of words, and the disability, so if the real reason the person is slurring their words is because they have drunk too much, and is unconnected with their having suffered a stroke, the pub’s refusal to serve him will not arise in consequence of his disability.  

Employment tribunal decision

The tribunal upheld the unfair dismissal claim but dismissed the s.15 discrimination claim as it found that the employer’s motive for the dismissal was not the Claimant’s disability but was instead the employer’s genuine, albeit mistaken, belief that the Claimant was falsely claiming to be sick.

It was the tribunal’s view that a claim under s.15 of the Equality Act requires the disability to be the cause of the employer’s action, and not merely the background circumstance.

Employment Appeal Tribunal decision

The tribunal’s decision on the discrimination claim was overturned by the EAT.  

The EAT ruled that the tribunal had incorrectly considered that the Claimant’s disability had to be the cause of the dismissal in order for the Claimant’s discrimination claim under s.15 to succeed. In fact, the legal test only requires the disability to be a significant influence on the unfavourable treatment, or a cause which need not be the main or the sole cause, but is an effective cause of the unfavourable treatment.

In addition, the ET had incorrectly taken into account the employer’s motive for its action in dismissing the Claimant, and motive is irrelevant.

The EAT ruled that, if the tribunal had directed itself correctly, the only possible conclusion was that the necessary connection between the Claimant’s disability and the unfavourable treatment had been established.

 Comment

As the EAT's judgment makes clear, the link between disability and unfavourable treatment need not be a strong one and an employee can pursue a claim if they can show that they have been treated unfavourably in consequence of their disability. The employer’s motive for the treatment is irrelevant.

Even if the claimant succeeds in establishing discrimination arising from disability, the employer can still defend the claim by showing either that they did not know and could not reasonably have known that the employee was disabled or that the unfavourable treatment was objectively justified.

Warning - this bulletin is provided for information only and is not a substitute for legal advice.You should obtain specific, personal advice about your circumstances and not rely on the information or comments in this bulletin.