The EAT has decided that an employee did not need to show a direct connection between their disability and the misconduct leading to their dismissal in order to show that the dismissal was unfair. The EAT found that this principle also applied to claims for discrimination arising from a disability (Risby v London Borough of Waltham Forest, EAT).
Misconduct is one of five potentially fair reasons for dismissal set out in the Employment Rights Act 1996 (ERA). The ERA also requires an employer to act reasonably in treating its reason for dismissal as a sufficient reason for dismissing an employee.
Discrimination arising from a disability
An employer will discriminate against an employee where it treats the employee unfavourably because of something arising in consequence of his or her disability and cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim (s.15 (1), Equality Act 2010).
In the case of Hall v Chief Constable of West Yorkshire, it was held that the effect of s.15 was to: "loosen the causal connection which is required between the disability and any unfavourable treatment". It held that the disability did not have to be the cause of the employer's unfavourable treatment, but could be a: "significant influence on the unfavourable treatment, or a cause which is not the main or sole cause, but is nonetheless an effective cause of the unfavourable treatment".
A similar decision was reached in Basildon & Thurrock NHS Foundation Trust v Weerasinghe, which also dealt with misconduct arising from a disability. It was held in that case that the claimant had to show that his misconduct arose in consequence of his disability, and that that misconduct led directly to the unfavourable treatment.
The EHRC Employment Statutory Code of Practice (the Code) gives an example of discrimination arising from disability which has parallels with the facts of this case: a woman is dismissed because she loses her temper because of the pain she is suffering as a result of cancer treatment. The loss of temper is out of character and purely caused by the pain.
The Claimant worked for the Council and had a serious disability; he was paraplegic due to a road traffic accident. He also had a very short temper, which was unrelated to his disability.
The Council arranged a number of workshops for its staff at a private venue with wheelchair access, which was accessible to the Claimant. However, shortly before the workshops were due to take place, the venue was changed for financial reasons to the basement of one of the Council's buildings, which was not accessible to the Claimant. The Claimant became very angry when he discovered this and complained aggressively to a number of colleagues, eventually shouting at a junior member of staff and using a highly offensive racial slur.
Later that day, he used this same racial slur in a telephone call to the workshop organiser. The Claimant was summarily dismissed for his offensive language and aggressive behaviour towards colleagues, and was told in his final disciplinary meeting that there was nothing he could have said to affect the outcome. He brought claims for unfair dismissal and for discrimination arising from a disability.
Employment Tribunal decision
The Tribunal concluded that the Claimant had been dismissed because of his misconduct in the way he had treated his colleagues, and that this conduct was caused by: "indignation that was out of proportion to the problem". Although, in its analysis of the facts, it had identified that one cause of the indignation was the Claimant's disability, it had concluded that the disability was not the direct cause of the unfavourable treatment of dismissal. Rather, this had been caused by the Claimant's short temper, which was part of his personality independent of his disability (thereby distinguishing the example given in the Code). The Tribunal, therefore, did not go on to consider whether the dismissal was a proportionate means of achieving a legitimate aim.
In relation to the unfair dismissal complaint, the Tribunal felt that a final written warning might have been another possible sanction in the circumstances, given the mitigating factor of the Claimant's disability, which the employer had not fully explored. However, it concluded that the availability of a milder sanction did not render the sanction of dismissal unreasonable.
The EAT held that the Tribunal had erred in concluding that the Claimant's unfavourable treatment could not be a consequence of his disability because there was no direct causal link. It pointed out that the Claimant's loss of temper, although precipitated by his natural propensity to get angry, would not have occurred had it not been for the disability. It was true that the Claimant's shortness of temper was one of the causes (and was perhaps the main cause) of the misconduct, but another effective cause was the disability. Therefore, following the analysis in Hall, the Claimant's s.15 claim could stand.
The EAT held that the error of law in relation to s.15 was also capable of affecting the Tribunal's decision on reasonableness in the unfair dismissal claim. The Tribunal had acknowledged that the employer might have imposed a milder sanction had it conducted a proper analysis of the causes of the Claimant's outburst. The suggestion that there was nothing the Claimant could have said to change the sanction of dismissal no longer seemed open to a reasonable employer in the context of the EAT's analysis which suggested that the behaviour was partly caused by the disability.
The case was remitted back to Tribunal.
This case confirms that the threshold of causality to be satisfied to bring a s.15 claim is a very low one. Disability can be one of a group of causal factors, rather than the sole or even the main cause. However, as this case did not examine the question of proportionality, the question arises how such claims might be justified. It may be easier to justify discrimination when the protected characteristic of disability is not the overriding cause of the mistreatment but is only one of a number of causal factors.