Is it fair to discipline an employee because of his aggressive behaviour which arose because of his disability?
This was considered by the Employment Appeal Tribunal (EAT) in the case of McQueen v The General Optical Council.
The EAT considered whether an employee's aggressive conduct and short temper was something arising in consequence of his disabilities under section 15 of the Equality Act 2010 (EA).
The legal bit
Discrimination arising from disability (section 15 of the EA) occurs where:
- A treats B unfavourably because of something arising in consequence of B's disability.
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim (the objective justification defence).
The "something arising in consequence" of B's disability can be wide ranging and will depend on an individual circumstances and examples include regular rest breaks, hospital appointments, and behavioural issues.
Mr McQueen, the Claimant was employed as a registration officer by the General Optical Council. He was at all times deemed to be disabled because of dyslexia, symptoms of Asperger’s syndrome. The Claimant also has neurodiversity and left sided hearing loss. It was accepted that his conditions can cause difficulties with his interactions with his colleagues.
The Claimant had been examined at various times during his employment by an occupational health adviser, a psychologist and a psychiatrist. The medical evidence indicated that, in situations of stress, anxiety or conflict, the Claimant would raise his voice and adopt mannerisms suggestive of aggression, with inappropriate speech and tone.
This resulted in a recommendation that the Claimant was sent instructions by email if he was being asked to change how a task was carried out. Following a number of further incidents, the Claimant was issued with a written warning and was disciplined again the following year for a performance issue.
The Claimant brought claims in the employment tribunal because of something arising in consequence of disability, under s15 EA.
The Claimant’s disagreement with instructions led to conflict, and the tribunal found that these did not arise from his dyslexia or Asperger's Syndrome but because he had a short temper and resented being told what to do.
In this case it was held that the behavioural issues that led the Claimant being disciplined did not arise because of his disability. If the ET held that it did then the Respondent can argue that this is objectively justified.
It is important for employers when managing individuals in circumstances such as this to obtain medical evidence and follow through recommendations if appropriate. It is also important to document the impact that such issues are having colleagues as this will assist in establishing such a defence.
If you'd like further guidance on dealing with cases like this one, please contact one of our expert employment law solicitors.