Wheatstone v Blakeney News Food and Wine Ltd & Ors (DISABILITY DISCRIMINATION)

For discrimination arising from disability under section 15 of the Equality Act 2010, the tribunal must decide as a matter of fact whether the alleged cause of the unfavourable treatment arose in consequence of the disability. A causal chain may contain more than one link, but the statutory connection must still be established on the evidence.

Where the issue is the medical cause of sickness absence, an Employment Tribunal may place greater weight on medical evidence than on the claimant's account. It does not err in finding that absence certified as work-related stress did not arise from epilepsy where the medical material did not connect the absence to that disability.

The claimant, a shop assistant with admitted epilepsy, was dismissed after an argument with the second respondent. She was then absent from work under fit notes recording work-related stress. The Bristol Employment Tribunal upheld her unfair-dismissal, contractual and wages claims, but dismissed her disability-discrimination claims.

For the section 15 claim, the Tribunal found that the absence beginning on 20 July 2017 did not arise in consequence of epilepsy. It therefore did not consider the alleged instances of unfavourable treatment or justification.

After a sift rejection and a Rule 3(10) hearing, the claimant appealed on the basis that the Tribunal had wrongly evaluated the GP records and her own evidence when deciding whether the absence was connected with her disability.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant's sickness absence did not arise in consequence of her epilepsy. Its dismissal of the section 15 claim therefore disclosed no error of law.

2. Under section 15 of the Equality Act 2010, the relevant factual question was what caused the sickness absence. A claimant may establish the statutory connection through a chain containing more than one causal link, as explained in Pnaiser v NHS England and Coventry City Council [2015] EAT 0137. That guidance did not alter the straightforward issue in this case: whether the particular absence arose from epilepsy.

3. The cause of sickness absence is ordinarily established through medical evidence, potentially supplemented by the claimant's evidence. Where they conflict, a tribunal may reasonably prefer medical-practitioner evidence.

4. The fit notes diagnosed work-related stress. Although the claimant had reported petit mal seizures, the medical evidence did not diagnose epilepsy as the cause of the absence or otherwise connect epilepsy with it. Her own evidence did not require a contrary conclusion. The Tribunal was consequently entitled to treat work-related stress, rather than epilepsy, as the cause of absence.

5. Because the required connection between disability and absence was not established, the Tribunal did not need to decide whether the alleged treatment was because of that absence or whether it was justified as a proportionate means of achieving a legitimate aim.

• Employment Appeal Tribunal: Dismissed the claimant's appeal: [2020] UKEAT 0287_19_1102.
• Employment Tribunal, Bristol: Upheld claims for unfair dismissal, contractual sums and unlawful deduction from wages, but dismissed the disability-discrimination claims.