06 Jul 2020
The Employment Appeal Tribunal (EAT) has ruled that an employment tribunal (ET) was right to rely on medical evidence from a GP when it was contradicted by the claimant in a discrimination claim.
Wheatsone v Blakeney News Food and Wine Ltd
What does the law say?
When dealing with a claim of disability discrimination, you must refer to the Equality Act 2010. It states that:
A person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability. And, importantly, A cannot show this treatment is a proportionate means of achieving a legitimate aim.
An example of this would be the following:
An organisation expects an employee to conduct new duties that could exacerbate their disability. The employee refuses to undertake these new duties, and the employer disciplines them. This could result in a discrimination arising from a disability claim.
For the purposes of the Act, epilepsy is considered a disability. However, workplace stress, is not.
The claimant in this case worked in a village shop. She suffered from epilepsy. However, her condition had little to no effect on her regular activities.
Her relationship with the shop’s owners began to break down. On one occasion, she was told to resign or be dismissed. Following this altercation, the claimant suffered a major epileptic seizure.
Her GP issued a fit note stating she was suffering from work-related stress. Therefore, it was recommended that she should stay away from work for the time being.
However, the shop asked her to return anyway. The owner discussed her private business with local customers in the village. And, later threatened to sue her for her actions.
The claimant started to feel even worse as a result and a second fit note was later issued. This note reaffirmed that she was suffering from stress.
The claimant’s role was later replaced. As a result, she brought numerous claims to the employment tribunal. These included unfair dismissal due to the lack of procedure followed in dismissing her and discrimination arising from disability.
The tribunal upheld her unfair dismissal claim. However, they dismissed her disability claim.
The tribunal established that the claimant had been treated unfavourably due to her taking time away from work following the altercation. The shop committed numerous acts to reinforce this. For example, demanding she return to work, changing her role and then dismissing her anyway.
The tribunal had to determine one thing before they could address the owner’s conduct. This was the ‘something arising’ in consequence of the claimant’s disability.
The reason behind the absence, according to the ET, was workplace stress, and not her epilepsy. This reasoning ultimately served to reject her claim. Workplace stress is not classed as a disability.
The claimant asserted in her evidence that her epilepsy had been exacerbated by the shop’s treatment of her. This, in turn had contributed to her absence. However, the GP made no mention of her epilepsy in either of the fit notes issued. It simply stated she needed time away from work due to stress.
On the basis of the evidence available to them from the GP, the tribunal therefore dismissed her claim. The claimant appealed against this decision to the EAT.
The main crux of the claimant’s argument was that her absence had more than one causal element. This would mean it was still related to her epilepsy.
Potentially, the ET had erred in concluding that this was not supported by the medical evidence.
The EAT dismissed her appeal, finding that the tribunal had made the correct decision with the evidence available.
They stated that the tribunal needed to consider if her disability was related to her absence when it appeared she was off work due to stress. In other words: what was the specific cause of her absence, which had then led to her unfavourable treatment?
This can be established by referring to medical evidence and claimant testimony. The EAT outlined this.
If there is a conflict between the two, the tribunal is likely to prefer evidence from a medical practitioner. Therefore, her claim was dismissed.
Note for employers
In most disability discrimination claims, it’s the claimant’s responsibility to demonstrate that their treatment is related to their disability. Failure to do this is likely to result in the case not going their way.
However, that doesn’t mean you should approach long-term sickness absence in related to disabled staff casually. You must maintain regular contact with them. And, you should not expect them to return to work despite them not feeling ready to do so. This is particularly the case when they have medical evidence to back their claims up.
In this case, if the claimant had been able to successfully link her disability to her treatment, the organisation could have been facing a costly discrimination pay-out.
This case also reminds organisations that they need to follow appropriate procedures when dismissing an individual. This remains the case even if the working relationship is breaking down.
Here, they clearly still wanted the claimant to work for them despite these issues. That meant a finding of unfair dismissal was all the more likely.
Worried how this latest ruling might impact your business? Dealing with a difficult HR situation and not sure where to turn? Speak to a Croner expert today for support and guidance on 01455 858 132.
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