How to judge whether misconduct ‘arises from a disability’
Under section 15 Equality Act 2010, ‘discrimination arising from a disability’ occurs where an employer treats a candidate or employee ‘unfavourably’ because of something arising in consequence of a disability and it is not able to objectively justify that treatment.
This form of discrimination recognises that it is often the knock-on effect of a person’s disability which leads to problems in an employment context rather than the disability itself.
As an employer it is not always easy to know what behaviour ‘arises from’ a disability. The words ‘arises from’ a disability have been described by the Employment Appeal Tribunal themselves as ‘deliciously vague’ (Land Registry v Houghton, 2014). This does nothing to help employers who are trying to stay on the right side of the law.
Mental impairments are particularly difficult to assess. Cautious HR teams often worry about taking disciplinary action against an employee where their behaviour could be linked to a disability. It is also easy to fall into the trap of relying upon the employee’s ‘self assessment’ – if they say that their behaviour arises from a disability the employer often just takes their word for it. However, this approach, whilst obviously reducing the risk of discrimination claims, can result in a worrying loss of ability to control employee conduct.
A recent EAT decision helps employers struggling with how to assess whether behaviour ‘arises in consequence of a disability’. It makes it clear that distinctions can be drawn between behaviour arising from a disability and misconduct. In McQueen v The General Optical Council, Mr McQueen was employed as a registration officer. He suffered from dyslexia, Asperger’s syndrome, neurodiversity and hearing loss. He was disciplined for a pattern of aggressive behaviour at work.
He brought a claim alleging that he had been treated unfavourably for this aggressive behaviour, which he claimed arose from his disabilities. The medical evidence stated that his disabilities meant that he was more likely to lose control when stressed. Despite this, the Employment Tribunal decided that the aggressive behaviour which led to the alleged unfair treatment was not something which arose from his disabilities at all.
The EAT agreed that this assessment could stand. It noted that the test of whether behaviour ‘arises from’ a disability is a wide one and does not require the disability to be the sole or main reason for the behaviour, but found that there was no need for the ET to look at multiple factors contributing to the behaviour in this case as they had concluded that the disabilities had no impact on the behaviour – so did not ‘arise’ from them at all.
This case, as with all cases looking at discrimination arising from a disability, is fact specific and employers should exercise caution in this area. There are some useful points which can be taken away:
- You do not have to accept your employee’s self-assessment of their impairment and what arises from it. Obtaining occupational health support will give you a more objective view.
- It will not always be possible to reach a clear-cut conclusion that behaviour does not ‘arise’ from a mental impairment. It does not have to be the only reason for the behaviour in order to ‘arise’ from it. It is therefore wise to exercise caution where the position is not clear.
Employers will not be liable even if they treat an employee unfavourably for something arising from a disability if they can show the treatment was a ‘proportionate means of achieving a legitimate aim’. This is an important caveat, especially in cases where it is unclear whether the conduct ‘arises from’ a disability.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539