In Risby v London Borough of Waltham Forest UKEAT/0318/15/DM, the Employment Appeal Tribunal considered whether an employment tribunal was right to dismiss claims for unfair dismissal and discrimination arising from disability when an employee was dismissed for misconduct after he lost his temper when he found out his employer had decided to move a course to a venue that he was unable to access as a wheelchair user.
Mr Risby is a paraplegic who was employed by London Borough of Waltham Forest (WF).
In 2013, WF organised management training for some of its employees, including Mr Risby, which was to be held at an external venue with wheelchair access. Shortly before the training session was due to take place, the chief executive of WF decided that it could not justify the cost of hiring the venue and decided to hold the session in WF's basement, which did not have wheelchair access.
Mr Risby spoke to the chief executive's personal assistant, Ms Scott, on several occasions concerning the change of venue in increasingly irate terms, which culminated in Mr Risby reducing Ms Scott (who is mixed race) to tears when he shouted at her using extreme and racist language.
Mr Risby was suspended and subsequently dismissed for using offensive and racist language in the workplace and acting in an unacceptable way towards his colleagues. Mr Risby appealed against his dismissal on the grounds that summary termination was too severe a sanction but this was rejected by WF.
Mr Risby brought claims of unfair dismissal and disability discrimination under section 15 of the Equality Act 2010 (the Act) against WF.
Section 15 of the Act provides that it is discriminatory to treat a disabled person unfavourably because of 'something arising in consequence' of their disability, unless it can be shown that the treatment was justified as a 'proportionate means of achieving a legitimate aim'.
The meaning of 'something arising in consequence' is very wide and had been considered in a number of cases prior to Mr Risby's claim. These cases had clarified that where a person's actions had led to them receiving a disciplinary sanction (or other unfavourable treatment), the person's disability does not have to be the direct cause of their actions but it must have a significant influence on their actions and be more than a mere background circumstance.
In this case, Mr Risby claimed that the fact that he was wheelchair bound was connected to his disability and that this had led to him complaining to WF about the change of training venue. Mr Risby asserted that his act of complaining had led to his dismissal and therefore his dismissal was linked to his disability and was discriminatory.
Employment tribunal decision
The employment tribunal (ET) agreed that Mr Risby was disabled and that the fact he was wheelchair bound arose in consequence of his disability. However, the ET found that the cause of Mr Risby's dismissal had been his abusive behaviour and considered that there was no logical connection between his behaviour and the fact that he was wheelchair bound. Instead, this was linked to Mr Risby's short temper, which did not relate to his disability.
The ET rejected his disability discrimination claim on this basis and did not therefore go on to consider whether WF dismissing him may have been justifiable as a proportionate means of achieving a legitimate aim. The ET also dismissed Mr Risby's claim of unfair dismissal.
Mr Risby appealed to the Employment Appeal Tribunal (EAT).
The EAT held that the ET had made an error of law when considering Mr Risby's discrimination claim.
The EAT considered that the ET had focussed its attention on whether Mr Risby being wheelchair bound had been the sole or main cause of his abusive behaviour, whereas the correct approach was to consider whether this had had a significant influence on his behaviour and/or had been one of several causes of it.
The EAT stated that Mr Risby's disability and the fact that he was wheelchair bound had led to him complaining to WF about the decision to hold the training at an inaccessible venue and that it was his indignation about the decision that had led to his misconduct and dismissal. While the EAT agreed that Mr Risby's short temper (which it held was not disability-related) was part of the reason for his outburst and use of racist language, this did not prevent section 15 of the Act from being engaged.
The EAT therefore overturned the ET's decision regarding Mr Risby's discrimination claim and took the decision to remit this claim and Mr Risby's unfair dismissal claim to the ET. The ET will now re-consider the matter in light of the EAT's clarification of the correct legal approach.
While the outcome of this case may initially appear surprising, it should be noted that the EAT did not consider whether WF's decision to dismiss Mr Risby was justifiable as a proportionate means of achieving a legitimate aim. This question will be considered by the ET when the case comes before them for re-hearing.
This decision serves to emphasise the very wide scope of section 15 of the Act and that there does not need to be a direct link between the person's disability and the thing that leads to them being subjected to unfavourable treatment for them to establish that the relevant thing 'arises from' their disability. In this case, it was noted that Mr Risby's short temper (which was unrelated to his disability) appeared to be the main reason for his outburst but as the subject matter of his complaint related to his disability, section 15 was engaged.
When dealing with disabled employees, it is important to consider whether the reason for any unfavourable treatment may relate to the employee's disability or something associated with it and, if so, to consider what the aim of the potentially unfavourable treatment is and whether it is proportionate in the circumstances.