It is discriminatory to treat someone unfavourably 'because of something arising in consequence of their disability' if you cannot show that the treatment is justified as being a proportionate means of achieving a legitimate aim ('discrimination arising from disability'). Recently, the Employment Appeal Tribunal held that dismissing an employee for an episode of misconduct sparked by finding out that a course venue was inaccessible to him as a wheelchair user counted as negative treatment in consequence of his disability.
The facts
Mr Risby was dismissed by London Borough of Waltham Forest for gross misconduct after 23 years of service. He had been disabled as a result of paraplegia since before his time at the council began. Serious problems arose when his employers moved the proposed location of a workshop event from a venue that was wheelchair accessible to one that was not. Mr Risby's reaction to this change was a furious outburst, during which he used offensive language and racist terms, leaving a more junior colleague close to tears. This resulted in an investigation and his dismissal for gross misconduct.
The decision
While the Employment Tribunal rejected his claims for unfair dismissal and discrimination arising from disability, the Employment Appeal Tribunal took a different approach. It held that, were it not for Mr Risby's paraplegia, he would not have had cause to be angry in the first place. That being so, Mr Risby's outburst amounted to conduct arising in consequence of his disability.
The case has been remitted back to a tribunal to deal with a final question: whether Mr Risby's dismissal was a proportionate means of achieving a legitimate aim - specifically promoting adherence to the council's equal opportunities policy. If his employer cannot show that their decision to dismiss Mr Risby was proportionate, and that the aim pursued was a legitimate one, then the discrimination arising from disability claim will succeed.
This decision is all the more striking since Mr Risby's generally short temper was found not be the direct result of any disability.
The Employment Appeal Tribunal has, therefore, loosened the causal link required between an employee's disability and the 'something arising in consequence of the disability'.
In practice...
- If a disabled employee reacts adversely to a situation, think about whether that reaction is in relation to either a disadvantage that they have suffered as a result of their disability or the effects of that disability. A failure to do so could amount to discrimination arising from disability.
- If you have an employee who is disabled then you must make reasonable adjustments if they would be placed at a substantial disadvantage by a way in which the business works or by a physical feature of the workplace. If you fail to make reasonable adjustments, a disabled employee may argue that their subsequent misconduct - for example, an angry outburst in the workplace - is a consequence arising from their disability, even if their mood or temper is not directly affected by their condition.
- If an employee does engage in misconduct in this type of situation, the disciplinary action that you take must be proportionate and in pursuit of a legitimate aim.
- Depending on the circumstances - for example, whether other employees were affected by any misconduct - a legitimate aim of disciplinary action may be to promote adherence to the company's policy on staff conduct or treatment.
If you would like to discuss anything raised by this blog, please get in touch with one of the Employment team at Brodies.
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Practice Development Lawyer
