Cause of Conduct
Risby v London Borough of Waltham Forest
The Employment Appeal Tribunal (EAT) has examined whether there needs to be a direct causal connection between disability and conduct which leads to dismissal in order to be protected by discrimination laws.
The claimant was employed as a deputy risk and insurance manager. He was seriously disabled, he was a paraplegic, and had a short temper which was unconnected to his disability. In 2013, his employer decided to organise workshops for their managers. Initially, these were located at a wheelchair accessible external venue but, due to costs, the workshops were brought internally to be held in the basement of their assembly hall. An invite was sent to the managers, including the claimant, on the 18th June confirming the basement location. That evening he confirmed his suspicions the basement was not accessible and became very angry overnight. The claimant then spoke to his divisional director’s personal assistant three times about the arrangements for the workshops. On the third occasion he was very angry and shouted at the personal assistant. The assistant sought a manager when, during an altercation, the claimant 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. At the disciplinary hearing, the claimant’s stance was that he was trying to make a point. The claimant was dismissed for gross misconduct for using offensive, racist language, behaving unacceptably to managers, colleagues and in a harassing manner during the disciplinary. The claimant appealed against the severity of this decision but this failed due to the claimant’s knowledge 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 dismissal was unfavourable treatment because of something arising from his disability and, if so, whether this was a proportionate means of achieving the legitimate aim of ensuring and promoting adherence to the Equal Opportunities policy. The ET found that there was no logical connection between the claimant’s behaviour on the 19th June and his paraplegia. As the misconduct couldn’t be explained by reason of disability there was no disability discrimination.
The claimant appealed. The EAT judged that there doesn’t need to be a direct causal link between the disability and the conduct, only a loose link. The EAT viewed that if the claimant had not been disabled he would not have got angry at the inaccessibility of the workshop, meaning the disability was an effective cause of the misconduct. As the ET had not considered whether dismissal was justified, the case was sent back to tribunal.
Lorna Stafford, Lead Care Sector said “This case appears to show that employers need to tread carefully when deciding if something is, or isn’t, connected to a disability. Employers can still justify taking action for misconduct that has been caused by a disability so long as they can show their action was a proportionate means of achieving a legitimate aim.”