Employer’s belief that employee was working when off sick could amount to discrimination

In Pilkington UK Ltd v Jones the Employment Appeal Tribunal (EAT) has upheld a Tribunal decision that an employer’s erroneous belief that a disabled employee was engaged in physical activity whilst off sick amount to discrimination as it was “something arising” in consequence of his disability.


The employee had developed a painful condition in his shoulder which, following Occupational Health review, had meant that he was permanently prevented from undertaking manual work.  The employer however had observed him wearing work boots whilst off sick and had employed surveillance agents to film the employee whilst he was on sick leave.  The footage show him accompanying his friend, a farmer, in a transit van delivering products.  He was seen handling a retail size bag.  The deliveries themselves were carried out by the farmer or his son.  There was also footage showing the employee passing a hose to the farmer.  The employer considered that this gave them grounds to believe he was engaged in secondary employment and following a disciplinary process, he was dismissed for gross misconduct.  The Claimant employee brought an Employment Tribunal claim alleging that the employer had treated him less favourably because of something arising in consequence of his disability.

If any of you have an in-house Kings Counsel on hand to interpret the EAT’s decision then it can be put as follows :-
“Dismissing the appeal, the EAT observed that there are two aspects of causation under S.15 EqA: firstly, something arising from the disability, and secondly, a consequential treatment that is unfavourable. The former requires an objective analysis, the latter a subjective consideration. In most cases it would be possible to point to an external factor separate from the mind of the decision-maker which is the ‘something arising’ from the disability, the person who is absent due to disability and is dismissed for absence being a paradigm example. However, this particular case was unusual because the tribunal had specifically rejected the external factors advanced by the employee, finding instead that the employer’s belief was, in part, the ‘something arising’. That, at first blush, might appear surprising given the need for an objective test: any belief must, naturally, be a subjective state of mind in the individual holding the belief. However, in the EAT’s view, there can nevertheless be an objective finding that a particular state of mind arises from the disability. If there is knowledge of a disability, it is easy to conclude that any belief about that disability arises from that knowledge. Therefore, either an accurate or an erroneous belief, drawn from a knowledge of the existence of that disability, would be a ‘something’ arising from the disability. Although that belief is subjectively held, it can be objectively recognised in the same way that a subjective intent can be objectively observed from surrounding facts. On that basis, a belief could be properly categorised as something arising from disability, and in the instant case the tribunal had not erred in so categorising the belief in question”.
Simple…and some say employment law is getting too complex for employers to navigate?!

The EAT also went on to find that the sickness absence was the reason for the surveillance and the sickness absence was the context in which the decision to dismiss was made, relying on the erroneous belief that the employee was engaged in secondary employment.  That believe was drawn from different pieces of evidence, a key element being the Claimant’s sickness absence which was caused by his disability.  The fact that there are other reasons that the belief did not stop the sickness absence itself being a substantial part of the reason that led to the unfavourable treatment of dismissal.


The case is a reminder of just how far protection extends to employees who can claim to be dismissed by something arising from disability.  In summary here, the employer did have evidence that he was accompanying other workers, even if that didn’t really amount to enough to say that he was engaged in secondary employment.  

The Tribunal may have come to different conclusions if the employer’s evidence or secondary employment was far stronger than appeared to be the case here.  It is therefore fact specific and important not to draw too many wider applications as with every case will depend on the facts.  In cases involving dismissals however where a long-term sick employee is suspected of doing work elsewhere, it will no doubt be used by employees and Claimants’ solicitors to argue that employers are guilty of discrimination under the Equality Act.