In Risby -v- London Borough of Waltham Forest (UKEAT/0318/15) a disabled employee dismissed for making angry and racist comments when his training course was moved to a location without wheelchair access, has had his case remitted to the Employment Tribunal after successfully appealing to the Employment Appeal Tribunal (EAT).

The law

Section 15(1) of the Equality Act 2010 provides that discrimination arising from a disability occurs when:

  • A treats B unfavourably because of something arising in consequence of B’s disability; and
  • A cannot demonstrate this was a proportionate means of achieving a legitimate aim.

The facts

Mr Risby, a paraplegic, had been employed by London Borough of Waltham Forest (LBWF) for 23 years before his summary dismissal for gross misconduct.

In 2013 Mr Risby was invited to attend some training at a location with wheelchair access as a cost to LBWF of £180 per session. In June that year, to save costs the decision was taken by the council to hold all training sessions on council premises. Mr Risby’s training session was moved to the basement of one of the council’s buildings without wheelchair access.

Mr Risby reacted angrily to the news, telling a colleague, ‘the council would not get away with this if they said that no f**king n***ers were allowed to attend’ and added that he was being treated ‘like a n***er in the woodpile’.

Following a disciplinary process, Mr Risby was summarily dismissed for his comments. In reaching its decision LBWF took into account that fact that he had used racist language on two occasions and had behaved unreasonably toward colleagues. It also took into account the impact the comments had on Mr Risby’s colleague, who was (unbeknown to Mr Risby) of mixed race and believed the comments had been directed toward her. Mr Risby’s argument that he was just trying to make a point was not accepted.

Mr Risby brought claims in the Employment Tribunal for unfair dismissal and discrimination arising from a disability. The tribunal dismissed the claims, finding that Mr Risby’s short temper (which was the immediate cause of his dismissal) was a personality trait and not related to his disability. Mr Risby appealed to the EAT.

EAT’s decision

The EAT allowed Mr Risby’s appeal, holding the tribunal was wrong to conclude that Mr Risby’s conduct was not caused by his disability. It held that the cause of Mr Risby’s conduct was his ‘indignation’ at the decision to hold his training in that location and that, had he not been disabled by paraplegia, he would not have been angered by that decision. The EAT accepted that Mr Risby’s short temper was also a cause of his outburst and was unconnected to his disability, but held that this should not mean that the other disability-related cause should be disregarded altogether.

In view of the tribunal’s error in relation to Mr Risby’s discrimination claim, the EAT decided the unfair dismissal claim should also be remitted to the tribunal to be reheard. The tribunal will then have to determine if LBWF’s discriminatory conduct toward Mr Risby can be justified as a proportionate means of achieving a legitimate aim.

What this means for employers…

This case is one of a number of similar decisions by the EAT in recent years to relax the requirements to show a causal link between an employee’s disability and the ‘something arising in consequence of the disability’. This, together with the tribunals’ notoriously lenient approach to the definition of a disability, makes it easier still for employees to succeed in claims for disability discrimination.

Employers dealing with misconduct which could potentially have arisen due to a disability (however tenuous the connection) should consider carefully whether any proposed sanction can be justified as a proportionate means of achieving a legitimate aim. If not, you may struggle to defend a disability discrimination claim.