Risby v London Borough of Waltham Forest

In this case, the link between an employee’s disability and their subsequent behaviour was examined, coming out in favour of the employee.

The claimant, who was paraplegic, was employed by the local authority as a deputy risk and insurance manager. He had a short temper which was not connected to his disability. In 2013, the local authority decided to organise workshops for their managers which were to be held in the assembly hall at their premises. That evening the claimant passed the hall to confirm his suspicions it was not wheelchair accessible and worked himself in to an angry state overnight. When the employee spoke to his divisional director’s personal assistant about it, he was very angry and shouted. During an altercation with a manager, the employee loudly used a highly offensive racist term which upset the personal assistant. In a later call with the workshop organiser, the claimant again used the same racist term in full hearing of another employee.

The claimant was suspended and then dismissed for gross misconduct due to using offensive, racist language, behaving unacceptably to managers, colleagues and behaving in a harassing manner during the disciplinary hearing. The claimant appealed against the severity of the decision. The appeal failed because the claimant knew his conduct would not be tolerated and there was a risk of repetition. The claimant brought claims of unfair dismissal and disability discrimination.

At the Employment Tribunal (ET) two issues were identified: whether the claimant’s dismissal was unfavourable treatment because of something arising from his disability and, if so, whether dismissal could be objectively justified. The ET found that there was no logical connection between the claimant’s behaviour and his paraplegia. As the misconduct could not be explained by reason of disability there was no disability discrimination.

The claimant appealed. The EAT judged that there does not need to be a direct causal link between the disability and the conduct, only a loose link. The EAT reasoned that if the claimant had not been disabled he would not have got angry at the inaccessibility of the workshop. This meant the disability was an effective cause of his misconduct.

Patrick Carroll Fogg, Lead Employment Law Business Partner, said of this case “Discrimination arising from a disability can be objectively justified, meaning that it is open for the employer to give a good enough business reason for their actions. The Employment Tribunal had not looked at the case from this viewpoint, and so it has been sent back to them to make a decision on this. What this case does show, however, is that the link between disability and behaviour can be quite tenuous.”