What is unfavourable treatment?

26 Jun 2019 By Homa Wilson

Homa Wilson examines the implications for employers of an EAT decision on unfavourable treatment due to a disability

Discrimination arising from disability occurs where an individual suffers unfavourable treatment because of ‘something’ which arises in consequence of their disability and the employer fails to show that the treatment is a proportionate means of achieving a legitimate aim. There must be a causal connection between the ‘something’ and the disability and the ‘something arising in consequence’ of the employee’s disability can be wide.

In 2018, the Court of Appeal in City of York Council v Grosset, confirmed that it was not necessary to show the employer knew of the causal link between the ‘something’ and the employee’s disability. However, knowledge (actual or imputed) of the employee’s disability is still required. 

In iForce Ltd v Wood, Ms Wood worked in a warehouse packing items at a fixed workbench. She suffered from osteoarthritis, a disability under the Equality Act 2010 (EqA 2010). Her condition was exacerbated by cold and damp weather. Her employer changed its work practices, requiring staff to move benches to ‘follow the work’. Wood refused to work at the end benches, near the loading doors, believing it to be colder and damper there. 

Her employer concluded that there was no material difference in temperature or humidity near the loading doors compared to the rest of the warehouse. It felt Wood’s refusal to comply with the new policy amounted to misconduct and issued her with a final warning (downgraded to a written warning on appeal). Wood considered this less favourable treatment and issued employment tribunal proceedings, complaining of discrimination arising from her disability. 

The ET found the warning amounted to unfavourable treatment, which arose in consequence of her disability – the warning was issued because of her refusal to comply with an instruction to work on benches near the loading doors, which arose because she believed, albeit mistakenly, that it would adversely affect her condition. 

EAT decision 

The EAT set aside the ET’s decision. Wood’s refusal to work near the doors did not arise from her osteoarthritis but rather from her mistaken belief that moving benches would worsen her condition. There was no causal connection between the warning and her disability.

The EAT held that while a broad approach should be adopted when determining whether there is a causal link between the 'something' (Wood’s refusal to work near the warehouse doors) and 'unfavourable treatment' (the warning), to establish a claim under s 15 of EqA 2010 there must be a connection between the 'something' and the claimant's disability.

Points for employers: 

  • The EAT’s decision establishes that the employee’s perceived connection between the unfavourable treatment and the ‘something arising’ will not be sufficient to establish a claim under s 15. To succeed, the employee must show an actual causal link between the disability and the relevant ‘something’. 

  • While this decision has had many employers breathing a collective sigh of relief, the causal connection between the unfavourable treatment and the ‘something’ can be a loose one. The disability does not have to be the immediate cause of the ‘something’.

  • In demonstrating just how loose the connection could be for a s 15 claim to be made out, the EAT cited an example given in the EHRC Employment Statutory Code of Practice (the Code). This was of a woman who is disciplined for losing her temper at work, but whose behaviour is out of character and is a result of severe pain caused by her disability (cancer). The Code states that the disciplinary action would be unfavourable treatment since it would be because of something which arises in consequence of the employee’s disability, namely her loss of temper. In the example, the disability (cancer) is not the immediate cause of the ‘something’ arising but has the requisite causal connection because it causes the employee to suffer pain, which in turn causes her to lose her temper (the ‘something’ arising in consequence of the disability).

  • The EAT made it clear that it was not saying that a false belief could never amount to ‘something arising’ from a disability. So, if Wood had been able to show that her judgement was impaired as a result of her disability (which is not how she had pleaded her case), this may have been sufficient to establish the necessary connection between her erroneous belief that the benches near the loading bays were cold and damp, and her disability.

  • For the employee to succeed in a claim under s 15, the employer does not need to accept that there is a link between the disability and the ‘something’.

  • Before introducing changes, employers should carefully consider the impact the changes may have on disabled employees. If an employee raises concerns, the employer would be wise to properly investigate any impact on disabled employees. This will involve obtaining and considering medical evidence. The findings of the investigation should be set out in writing, as the employer may need to subsequently rely on them.

  • If the employer decides to proceed in implementing the changes, it should ensure its decision is consistent with the findings of the investigation. 

Homa Wilson is an employment partner at Hodge Jones & Allen

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