Jack Boyle

Employers will be familiar with the requirement to take into account all the circumstances of the case in any particular disciplinary scenario. The usual factors such as the employee’s length of service and prior record must be considered. Any points of mitigation put forward by the employee should also be weighed up in the decision-making process. The extent to which the employee showed remorse is another factor in the mix.

What about where the employee is disabled? Where the employee is known to have a disability, and where the effects of the disability are put forward as an explanation for the misconduct alleged, employers should be slow to disregard such statements as “just another excuse”.

The relevant piece of law here is section 15 of the Equality Act 2010. This provides for a type of discrimination, known as discrimination arising from disability, which can arise where an employee is treated unfavourably because of something which arises in consequence of the employee’s disability. My colleague Donna wrote a blog which emphasises the importance of employers seeking medical evidence in cases where disability is raised as a defence in a disciplinary process.

In the recent case of McQueen v General Optical Council, Mr McQueen was employed as a registration officer. He had dyslexia, symptoms of Asperger’s syndrome, neurodiversity and left sided hearing loss. There was medical evidence available which suggested that he would manifest “altered speech in situations of stress, anxiety or conflict, and that he would raise his voice and adopt mannerisms suggestive of aggression, with inappropriate speech and tone”.

Following some unsavoury interactions with his line manager, Ms Patel, one of which reduced her to tears, Mr McQueen was subjected to a disciplinary procedure. He was issued with a written warning. A subsequent disciplinary process ensued just six months later. That allegation was not upheld. Mr McQueen lodged a grievance about his treatment during these processes.

Mr McQueen raised claims under section 15 of the Equality Act, alleging discrimination arising from disability. The tribunal rejected his claim on the basis that the behaviour complained of was not something arising in consequence of his dyslexia or his Asperger’s, but rather because he had a short temper and resented being told what to do.

Mr McQueen appealed to the EAT, arguing that the tribunal adopted the wrong test to the questions in the case. The EAT did not agree and upheld the original decision in favour of the employer. We were reminded of the questions which should be asked in a case like this:

1. What is/are the disability(ies);
2. What is/are their effect(s);
3. What unfavourable treatment is alleged in time and proved; and
4. Was that unfavourable treatment “because of” an effect or effects of the disability(ies).

Every case is fact specific and this case should not be regarded as a gospel rule that a tribunal will always disagree with an employee who suggests that their disabilities were the cause of how they behaved.

Jack Boyle is a director at Blackadders