Misconduct arising from disability?
20 March 2023
The Employment Appeal Tribunal (EAT) has recently considered whether an employee’s inappropriate conduct in the workplace was something that arose in consequence of his disabilities, meaning that he had been discriminated against when he was disciplined.
McQueen v General Optical Council [2023] EAT 36
Facts of the case
The employee, M, had a number of different neurological conditions that caused some difficulties with his interactions in the workplace. In stressful situations, he would raise his voice and display aggressive mannerisms.
M was referred to occupational health after one particular incident involving his line manager, described by the tribunal as a “meltdown”. This resulted in a recommendation that in future M should be emailed with instructions if he was being asked to change how a task was carried out. In 2016, following a number of further incidents, M was issued with a written warning. He was disciplined again in June 2017 for a performance issue.
After a protracted grievance process, M brought two tribunal claims. His claims included that he had been subjected to unfavourable treatment because of something arising in consequence of disability, under s15 Equality Act 2010. The tribunal held that the behaviours and incidents that had occurred did not arise due to his disabilities, but arose out of habit or because he had a short temper and resented being told what to do. M appealed to the EAT.
EAT decision
The EAT has dismissed M’s appeal, upholding the tribunal’s decision that there had been no disability discrimination. The tribunal’s reasoning was not flawed by any error of law or principle, even though its decision was drafted in an unorthodox manner. It had made findings on the extent and effect of M’s disabilities, and held that they had played no part in his conduct. M had himself ascribed a very major role to his disabilities as a cause of his loud and aggressive behaviour, but the tribunal was not bound by this self-assessment and was entitled to reject it based on the medical evidence.
The Birketts view
Conditions that may affect an individual’s personality or behaviour can sometimes present a challenge to colleagues, and can be difficult for employers to address without risking a claim for disability discrimination.
Previous case law has established that there only needs to be a loose connection between the unfavourable treatment and the disability for a case to be established. If an individual suffers from several different disabilities, however, it may not be clear which behaviours (if any) are related to a disability.
In this case, the employer had clearly taken medical advice and sought to introduce working practices to alleviate the risk of interactions escalating between colleagues. It is important to bear in mind that discrimination arising from disability under section 15 Equality Act can, in certain circumstances, be objectively justified. This defence will be easier to establish if the employer has sought medical evidence and occupational health advice on potential reasonable adjustments to address behavioural issues.
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Liz Stevens
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2023.