In the recent case of Risby v London Borough of Waltham Forest the Employment Appeal Tribunal has held that there only needs to be a loose causal link between an employee’s conduct and their disability for a “discrimination arising from disability” claim to be made.

Facts

The claimant was disabled by reason of paraplegia. The respondent decided to hold a workshop in a venue to which the claimant could not gain access. The claimant lost his temper, shouted at a junior colleague, brought her to tears and used offensive language towards her.

The claimant was dismissed on account of his conduct because he used offensive and racist language twice and behaved unacceptably towards managers and work colleagues, and had behaved in a harassing manner towards one colleague.

The ET dismissed his claims of unfair dismissal and disability discrimination, saying that his short temper was a personality trait not an illness and there was no logical connection between his behaviour and the fact that he is wheelchair bound. There was therefore no direct link between the disability and his dismissal. The claimant appealed.

Appeal

The EAT allowed the appeal and found that on the face of it the claimant’s treatment could amount to discrimination arising from a disability.  If the claimant had not been disabled by paraplegia, he would not have been angered by the respondent’s decision to hold the workshop in a venue to which he could not gain access. His misconduct was the product of that decision. The fact that the claimant’s personality trait of shortness of temper, which did not arise from his disability, was also a cause of his conduct, did not mean that the other cause, which was related to his disability, should be disregarded.

On this basis, it was necessary for the Employment Tribunal to consider whether the respondent’s actions in dismissing the claimant were a proportionate means of achieving the legitimate aim of ensuring and promoting its Equal Opportunities Policy. 

The error by the Tribunal also impacted on the reasonableness of the dismissal as the Tribunal had acknowledged that if the conduct was as a consequence of the claimant’s disability then some other sanction may have been appropriate.

The EAT therefore remitted both the discrimination and unfair dismissal claims back for a further hearing before the Employment Tribunal.

Comment

Employers should be mindful when dealing with an employee’s misconduct which arises in a situation that could be connected to their disability. This decision should not be taken however as a suggestion that it is always incorrect to discipline or dismiss an employee in a similar situation. The crucial point for employers is to investigate the reason for the misconduct and whether it might be linked in some way to a disability, consider all possible sanctions available, and be able to demonstrate that the sanction imposed is proportionate in light of the employee’s disability.