Misconduct linked to disability — new case law

It is enough to give even the most seasoned HR practitioner sleepless nights: an employee facing a disciplinary charge alleges that their behaviour was in some way caused by, or related to, their disability. Deciding when it is ‘safe’ or fair to proceed can be a difficult judgement call. Firstly, it can be tricky to decide whether an employee’s behaviour is in fact linked to their disability. How close must the connection be?

The EAT grappled with this question in the case of Risby v London Borough of Waltham Forest. The claimant in the case was dismissed for misconduct after losing his temper following his employer’s decision to move a training course to a venue inaccessible to him as a wheelchair user.

The EAT held that there need only be a ‘loose causal link’ between an employee’s conduct and their disability to give rise to a claim of disability discrimination. But what does the decision mean for HR practitioners seeking to balance individual rights with the consistent application of disciplinary rules?

What happened?

The claimant was employed by the LBFW as a risk and insurance manager. He was also a paraplegic wheelchair user. In early 2013, LBFW organised workshops for their managers to take place at an external, wheelchair-accessible venue. However, to save costs, a decision was taken to move a session due to be attended by the claimant, to an LBFW venue that was not wheelchair accessible.

The claimant was very angry and upset about this. He lost his temper and shouted at a junior colleague, using offensive and overtly racist language and causing her distress. The claimant was suspended and, following a disciplinary investigation, was dismissed for this outburst. He brought claims of unfair dismissal and disability discrimination.

The decision

Section 15(1) of the Equality Act 2010 states that disability discrimination can occur when an employer treats an employee ‘unfavourably because of something arising in consequence’ of the employee’s disability.

The Tribunal that first heard the case held that the claimant’s outburst had been caused by his short temper, which was a ‘personality trait’ and not related to his disability. It, therefore, rejected his disability discrimination claim.

However, when this decision was appealed, the EAT took a different approach. It held that, had the claimant not been a wheelchair user he would not have been angered by the decision to relocate the workshop to an inaccessible venue. It concluded that “his misconduct was a product of indignation caused by that decision” and that “his disability was an effective cause of that indignation and so of his conduct”. His disability was an ‘effective cause’ of his outburst. It did not matter that his fiery temper (unrelated to his physical disability) had also caused it.

This had a ‘knock on’ effect on the claim for unfair dismissal, as the original ET had suggested in its Judgment that, if a link was established between disability and conduct, a lesser sanction such as a final written warning might have been appropriate. As a result, the EAT sent the case back for an Employment Tribunal to re-hear.

What does this mean for me?

This decision seems to ‘loosen’ the required link between an individual’s disability and ‘something arising in consequence’ of the disability that could form the basis of a claim. The decision may mean that more employees in a broader range of circumstances may be able to bring disability discrimination claims.

However, this case does not mean that you cannot dismiss an employee where there is any tentative link to disability. It simply reinforces the fact that you should think carefully before doing so and consider all the facts and circumstances of the case.

If there is any suggestion that an employee’s disability has impacted directly on their behaviour (for example a mental health condition that might impair emotional control or affect social interactions) it may be important to obtain a medical opinion on the nature and extent of any such impact to help you move forward. Depending on the facts and prognosis, you may want to suspend or put a stop to disciplinary action to allow the employee to seek treatment or support. 

However, where the connection is much looser (as in this case) you may wish to proceed despite the risk of a disability discrimination claim. Dismissing an employee for behaviour ‘arising in consequence’ of a disability can be justified, if you are able to show that dismissal was ‘a proportionate means of achieving a legitimate aim’. You will need to carefully balance any discriminatory impact on the employee against the needs and standards of your organisation and be able to confidently explain your reasoning.

The best way to do this is to make sure you tackle any disability-related mitigation points clearly and thoroughly in your written dismissal decision. It is important to acknowledge any alleged link to disability as part of your analysis — even if you go on to find that this is insufficient to mitigate against a charge of gross misconduct.

Normal standards of ‘reasonableness’ will then apply to the conduct dismissal. Was the employee’s behaviour serious enough to justify dismissal in all the circumstances? In this case, the Claimant’s behaviour was shocking, extreme and clearly able to be considered unacceptable (despite the fact that he was arguably legitimately aggrieved). It is easy to envisage similar situations that might not be so ‘clear-cut’.

The interplay between disability discrimination law and unfair dismissal law can be complex and confusing. If you are dealing with a similar situation it is advisable to seek expert advice at an early stage.