Pilkington UK Limited v A Jones

For discrimination arising from disability under section 15 of the Equality Act 2010, the tribunal must determine separately whether the unfavourable treatment was because of an identified “something”, and whether that thing objectively arose in consequence of disability.

An employer’s belief about a disabled employee’s capabilities can itself be the “something” where it objectively arises from knowledge of the disability. The belief must be distinguished from the employer’s later attitude or motivation which produces the unfavourable treatment. Sickness absence caused by disability may remain an active and substantial reason for dismissal where it forms part of the information from which the employer reaches its conclusion. This is not necessarily a chain-of-causation or “but for” analysis.

The employer appealed against the Employment Tribunal’s finding that its summary dismissal of the claimant was discrimination arising from disability under section 15 of the Equality Act 2010.

The claimant had a disabling shoulder condition and was absent from work. Surveillance showed him undertaking limited activity at a farm. The employer believed that this activity was inconsistent with his asserted restrictions and dismissed him for gross misconduct.

The Employment Tribunal held that the employer’s belief that he had undertaken physical activity whilst off sick was the relevant “something” arising from disability. The employer contended that this formulation departed from the pleaded case, was legally incoherent, and reflected confusion between the objective and subjective elements of causation.

1. Appeal dismissed. The Employment Tribunal did not err in its conclusion that the employer’s belief about the claimant’s physical activity whilst absent through sickness was capable of being the relevant “something” for section 15 of the Equality Act 2010.

2. Section 15 involves two distinct factual causation questions. Whether the employer treated the employee unfavourably because of the identified “something” requires examination of the employer’s subjective state of mind. Whether that “something” arose in consequence of disability is an objective question, consistently with [2018] ICR 1492.

3. A belief is a subjective state of mind, but its existence and source can be objectively established from the facts. A belief about the employee’s disability, whether accurate or erroneous, may arise from knowledge of that disability. It must, however, be kept distinct from the employer’s attitude to the belief: the latter is the motivation which must result in unfavourable treatment.

4. On the Tribunal’s findings, the claimant’s disability-related sickness absence was an active and substantial element in the employer’s decision-making. The absence prompted the investigation and formed part of the information from which the employer concluded that the claimant’s activities were inconsistent with his asserted restrictions. Later information did not render the absence mere background.

5. The guidance that a longer causal chain may make an effective causal connection harder to establish did not require a different conclusion. A decision-maker’s conclusion drawn from several concurrent pieces of information is not necessarily a sequence of separate events. Nor did the analysis introduce a “but for” test.

6. The Tribunal’s reference to an objective causal link and its use of the word “connected” were, read fairly and in context, not legal errors. Its reasons showed awareness of the correct statutory test and the relevant authorities. It also addressed the pleaded issue of the employer’s belief and did not decide an unpleaded case.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Tribunal’s section 15 finding: [2023] EAT 90.
• Employment Tribunal, Manchester: held that the claimant’s dismissal amounted to discrimination arising from disability. The judgment was promulgated on 13 December 2021.