In this case, the EAT loosened the causal link test for claims of discrimination arising from a disability, making it even easier to show discrimination.

The facts

The Claimant, Mr Risby, was paraplegic and a wheelchair user. He worked in an open plan office with colleagues of both genders and different races. He had a short temper, but this was not related to his disability.

Mr Risby's employer organised workshops for its managers, including Mr Risby. The first venue chosen had wheelchair access. However, the venue was changed on the grounds of cost to a basement which did not have wheelchair access. Mr Risby became angry about this, and ended up shouting at a junior employee, reducing her to tears. He made offensive and racist comments that other employees overheard. Mr Risby was suspended, and (following an investigation) it was found that he had behaved unacceptably towards managers and work colleagues, including the junior employee towards whom he had (it was decided) behaved in a harassing manner. He was summarily dismissed. He appealed the severity of the sanction, but his appeal was dismissed.

Mr Risby brought claims for unfair dismissal and discrimination arising from a disability in the employment tribunal. After a nine day hearing the tribunal dismissed his claims. Mr Risby appealed.

The EAT referred to last year's EAT decision in Hall (which we covered here). Following this decision, the EAT reasoned that if Mr Risby had not been disabled by paraplegia, he would not have been angered by the decision to hold the workshop in a venue he could not access. It concluded, "his misconduct was the product of indignation caused by that decision" and "his disability was an effective cause of that indignation and so of his conduct". The fact that Mr Risby's short temper did not arise from his disability and it was also a cause of his conduct did not mean that the other cause, which was related to his disability, should be disregarded.

The EAT also held that the tribunal's error of law in relation to the discrimination arising from disability claim affected its decision in relation to the reasonableness of the decision to dismiss Mr Risby. The EAT therefore remitted both the discrimination and the unfair dismissal claims back for a further hearing before the employment tribunal.

At the remitted hearing, the employment tribunal will need to consider whether dismissing Mr Risby was justified – a proportionate means of achieving the legitimate aim of upholding its equal opportunities policy. It's possible that the tribunal will decide that a lesser sanction, perhaps a final written warning, would have achieved the employer's aim, meaning that the employer will fail in its justification defence.

What does this mean for employers?

This case is problematic for employers, further loosening the causal link between the disability and the "something arising in consequence of the disability". It shows how easy it will be for a disabled employee to show a link between their disability and unfavourable treatment: this link does not need to be a direct link.

Employers who are considering taking any action against disabled employees should consider whether there is a risk of any link, however tenuous, between the disability and the action. If there is any link, the employer should be ready to articulate why its action was a proportionate means of achieving a legitimate aim, so that it can justify its action.

Risby v London Borough of Waltham Forest