Due to the increased protection the Equality Act confers on disabled people when compared to previous legislation, employers now need to be aware that it could be in play in conduct as well as capability dismissals.

Legal background

The Equality Act 2010 made one significant change in the scope of protection for disabled workers when compared with the protection previously available under the Disability Discrimination Act. Section 15 introduced a new species of discrimination, known as “discrimination arising from disability”. This replaced disability-related discrimination, which had been restrictively interpreted following a House of Lords decision in 2008. Section 15 has now been invoked not only in capability-based decisions, but also in a number of dismissals for misconduct. It forbids unfavourable treatment “because of something arising in consequence of [the claimant’s] disability”. This is subject to a justification defence, if the employer can show that the treatment is “a proportionate means of achieving a legitimate aim”. That requires a balancing exercise between the employer’s business needs and the impact of the dismissal on the claimant.  Section 15 is closely connected with the duty to make reasonable adjustments – which has survived largely unchanged in the Equality Act. However there have been suggestions that most dismissal decisions are better analysed as a potential breach of section 15, while the focus of the duty to make adjustments is primarily directed at steps that can help disabled employees hold on to their job.

Even criminal misconduct can arise from disability

There have already been two decisions this year in which a disabled employee has been dismissed because of serious – indeed criminal - misconduct, but where the Employment Appeal Tribunal has said that the employer’s duties under section 15 have been engaged:

  • An employee with Asperger’s syndrome who had hidden a secret camera in a communal workplace shower and downloaded the images to his own computer. This led to a conviction for outraging public decency, although the judge in sentencing pointed out that his behaviour was due his condition and he was not “at fault” for the offence.
  • An employee with a paranoid schizophrenic illness who had sexually assaulted work colleagues during an acute episode which led to him being detained under the Mental Health Act. He subsequently pleaded guilty to all charges and was subject to a three year mental health treatment requirement.

In both these cases the EAT confirmed that the employment tribunal had been entitled to conclude that the conduct for which the employee had been disciplined was something “arising in consequence” of his disability but was not satisfied that the employment tribunal had addressed the employer’s justification defence in sufficient detail. It was therefore unable to say whether or not it should succeed, and it was necessary to remit the case to a new tribunal.  There is no obligation on an employer explicitly to address its duties under section 15 when reaching a decision to dismiss, as long as it can justify the decision it reached if challenged. However failure to identify that section 15 is in play can cause difficulties with the way the employer’s case is presented to the tribunal, even if there are good reasons for believing that the employer had little alternative but to dismiss.  Even in the most serious cases of misconduct, it is therefore important to consider whether the behaviour in question could be “something arising in consequence of” a disability. If it is, employers will to need to consider what their aim is in disciplining the employee and whether dismissal is both an appropriate and necessary step to achieve that aim.

Similar approach could apply to capability dismissals

Historically, tribunals have tended to focus on the duty to make adjustments when dealing with disputes arising from the dismissal of disabled employees for poor attendance. That was partly because from 2008 until the passing of the Equality Act disabled employees had no other way of challenging these decisions as potentially discriminatory.  However, the duty to make adjustments in this context has been interpreted increasingly restrictively, with some employers successfully arguing the duty was not even engaged where the employer’s capability procedure already made some additional allowance for disability-related absences. The EAT has now suggested that it is more natural to analyse these decisions by reference to the new section 15 duty. That is likely to involve a shift in emphasis from looking at the reasonableness of the steps the employer has taken to help the employee keep his job to assessing whether it is really necessary to dismiss.

Conclusion

In both conduct and capability dismissals disabled employees with sufficient service will of course also enjoy the protection of the unfair dismissal legislation. Similar issues arise under both jurisdictions, but it is important to appreciate that an employer’s duties under section 15 are considerably more onerous. The cases show that while in many cases the end result will be the same, these provisions impose considerably more exacting requirements on the employer than the duty to uphold the standards of a reasonable employer, which is all the unfair dismissal legislation requires.