Can you fairly dismiss a disabled employee for misconduct loosely linked to their disability?

In a recent case the EAT held that dismissing a disabled employee for a racist outburst after his training was moved to a non-wheelchair-accessible venue amounted to discrimination arising from the employee's disability unless the employer could objectively justify its decision to dismiss.

Risby v London Borough of Waltham Forest UKEAT/0318/15

Background

The head of claim "discrimination arising from disability" was introduced in the Equality Act 2010 and occurs where

1. An employer treats an employee unfavourably because of "something arising in consequence of the employee's disability" and
2. The employer cannot objectively justify the unfavourable treatment (i.e. by showing that it is a proportionate means of achieving a legitimate aim)

The Equality and Human Rights Commission Statutory Code of Practice (which Tribunals must take into account for discrimination claims) outlines the following example of what "something arising in consequence of a disability" means:

A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker’s disability, namely her loss of temper. There is a connection between the ‘something’ (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker.

In line with previous EAT case law, this recent case confirms that there only needs to be a loose causal link between the thing arising in consequence of the disability and the unfavourable treatment to meet the requirements of a claim for discrimination arising from disability.

Summary

Mr Risby had been employed by LWBF for 23 years and used a wheelchair. He was known to have a short temper. When some internal training he was due to attend was moved to a venue which was inaccessible by him in his wheelchair, Mr Risby lost his temper and shouted at a junior colleague using a seriously derogatory racist term. His point was that he did not think the employer would "get away" with such behaviour if they said that no black people were allowed to attend the training. Mr Risby claimed he did not know that the junior colleague he shouted these words at was of mixed race. He was dismissed on the grounds that he used offensive and racist language and behaved unreasonably to managers and other work colleagues.

His dismissal was upheld by the employer on appeal. It considered that such behaviour could not be tolerated as it was contrary to its equal opportunities policy and because of the effect of Mr Risby's behaviour on the junior employee.

However, Mr Risby brought claims for unfair dismissal and discrimination arising from disability.

At first instance, the tribunal held that there was no direct link between his disability and his behaviour and dismissed his claims.

However, the EAT held there was a link between Mr Risby's disability and his behaviour. They noted that previous EAT case law set down a loose causation test requirement meaning that all that had to be established was that Mr Risby's conduct arose in consequence of his disability. The EAT reasoned that if Mr Risby had not been disabled he would not have been angered by his employer's decision to hold the training in an inaccessible venue. The fact that Mr Risby'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.

Analysis   

In the Code's example the disability was the direct cause of the employee's loss of temper. This case seems to go a further that that; Mr Risby was known to have a short temper which was unrelated to his disability and this particular loss of temper only arose because of his employer's failure to accommodate his needs as a disabled person.

The case has been remitted back to a tribunal. There the employer will have the opportunity to argue that, regardless of the fact that the unfavourable treatment arose because of something in consequence of his disability, dismissing Mr Risby was a proportionate means of achieving a legitimate aim. Upholding its equal opportunities policy is very likely to be considered to be a legitimate aim. However, it is open to the Tribunal to conclude that a lesser sanction would have been proportionate in the circumstances and that dismissal was not objectively justified. 

This case should not be taken as suggesting that employers cannot sanction disabled employees who act unreasonably.  However, in such circumstances, employers should try and identify whether behaviour is linked to an employee's disability and, where it potentially is, ensure that any action is objectively justifiable.

When dealing with misconduct, it will nearly always be a good idea to undertake some investigation before taking formal action(even where an employee does not have 2 years' service) in order to establish whether any health issues raised contributed to the poor behaviour.  Otherwise, employers risk that any sanction could constitute discrimination arising from disability or that a dismissal is unfair. If misconduct is linked to, or caused by, a disability, action can still be taken but will need to be reasonable in the circumstances and objectively justified; whether this is the case is likely to turn on the facts and employers should consider taking advice. 

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