Discrimination: the causal link between conduct and disability

Under section 15(1) of the Equality Act 2010, discrimination arising from disability occurs where both:

  • A treats B unfavourably because of something arising in consequence of B’s disability.
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

The meaning of ‘something arising in consequence’ is very wide and has previously been considered in a number of cases. In the case of Risby v London Borough of Waltham Forest (UKEAT/0318/15/DM), the Employment Tribunal (ET) considered this definition when it had to decide whether an employer was right to dismiss claims for unfair dismissal and discrimination arising from disability when an employee was dismissed for misconduct after he became angry at his employer’s failure to accommodate his needs as a disabled person.

Facts

The Claimant, Mr Risby, was employed by the London Borough of Waltham Forest (LBWF) for 23 years until his dismissal for gross misconduct in 2013. He was a paraplegic and required the use of a wheelchair. In 2013, LBWF organised a training workshop for its employees (including Mr Risby) at an external venue with wheelchair access. Shortly before the session, the Chief Executive relocated the session to LBWF’s basement for cost-saving reasons. This new venue did not have any wheelchair access.

The venue change angered Mr Risby and he subsequently lost his temper, shouting at a junior  colleague and bringing her close to tears. As part of the outburst, he used particularly racist and offensive language. The junior colleague was mixed race and had believed that the comments were directed at her. Mr Risby was subsequently dismissed following a disciplinary investigation and hearing, as LBWF concluded he had used offensive and racist language, and had behaved unreasonably towards a colleague.

At the Tribunal

Mr Risby brought claims against LBWF for unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010. His argument for the discrimination claim was that the incident only arose as a result of his physical disability and therefore his dismissal was discriminatory in nature. The ET dismissed his claim, finding that there was no direct link between Mr Risby’s physical disability and the gross misconduct that led to his dismissal. Instead, this related to his short temper, which bore no relation to his disability.

Mr Risby therefore appealed to the Employment Appeal Tribunal (EAT). The EAT allowed his appeal and concluded that his disability was an ‘effective cause of that indignation and so of his conduct’. It held that there need only be a very loose connection between somebody’s conduct and any disability and that if Mr Risby hadn’t been disabled, he wouldn’t have reacted angrily to the change of venue. While the EAT agreed that his short temper was part of the reason for the misconduct, this did not prevent section 15 Equality Act 2010 from being engaged.

The EAT therefore took the decision to remit the claim back to the ET. The ET will now re-consider the matter in light of the EAT’s clarification. It will now also have to consider whether LBWF’s decision to dismiss Mr Risby was justifiable as a proportionate means of achieving a legitimate aim.

Comment

This case highlights the need for employers to tread carefully when an employee’s misconduct arises in a situation that could be connected to their disability. The decision of the EAT seems to set a fairly loose causal test between a person’s disability and the ‘something arising in consequence of the disability’ element.

When dealing with employees with disabilities, employers should always take particular care to consider whether the reason for any unfavourable treatment may relate to their disability, or something associated with it. Failure to do so could amount to unlawful discrimination arising from a disability.

For any further information regarding the above, please contact a member of the Devonshires Employment team.

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