- Employers should take extra care when considering disciplining a disabled employee for misconduct, to determine if there is a link between the conduct and the disability and, if so, to ensure that the treatment is justified. A recent EAT judgment establishes that an employer can be liable for discrimination arising from a disability where there is only a loose causal link between the disability and the misconduct for which the employee is disciplined. In Risby v London Borough of Waltham Forest, an employee was dismissed for misconduct after he lost his temper on learning that a training course had been moved to a venue inaccessible to him as a wheelchair user. His tendency to be short-tempered was unconnected with his disability, but the situation only arose because of his disability. This was sufficient to mount a claim for discrimination arising from disability (although ultimately his dismissal might still be justified).
- Employers should consider whether they have created an expectation for employees to work long hours; if so, they may need to consider reasonable adjustments if this places disabled employees at a substantial disadvantage. Particular care may be needed where a new extended hours requirement is introduced for existing employees, or where there is a long hours culture which only becomes an issue for a particular employee after they suffer an illness or injury (qualifying as a disability). In the latter case, management's willingness to accept shorter hours immediately after the employee's return to work may be short-lived, leading to pressure on the employee to return to their previous long hours. This was the position in Carrera v United First Partners Research, where the EAT held that an expectation to work long hours a few months after the employee's return from injury was created by initial requests for the employee to work late into the evening, followed by communications simply assuming that he would do so. This expectation amounted to a provision, criterion or practice for the purposes of a disability discrimination claim based on a failure to make reasonable adjustments.
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