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Gross Misconduct or Disability Discrimination?

If an employee uses foul and racist language in an outburst because they believe they are being discriminated against because of their disability, could a subsequent dismissal amount to discrimination arising from disability?

The Employment Appeal Tribunal (EAT) recently considered this question, which focuses on how close the link needs to be between their disability and their conduct to have protection under the Equality Act 2010.

Risby v London Borough of Waltham Forest

Mr Risby was employed by London Borough of Waltham Forest (the Borough) for 23 years until he was dismissed for gross misconduct in 2013.  Mr Risby is a paraplegic and uses a wheelchair.

The Borough organised training workshops for their managers, including Mr Risby.  The workshops had been scheduled to take place at an external venue with wheelchair access.  Due to the implementation of cost saving measures the Borough’s Chief Executive made a decision that external venues were not to be hired for training moving forwards.  As a consequence the Borough arranged for the workshops to be attended in the basement of one of the Borough’s buildings.  Unfortunately, the basement didn’t have wheelchair access meaning that it wasn’t accessible to Mr Risby.  He was very upset and angry about this and lost his temper, shouting at a junior colleague and bringing her close to tears.  As part of his outburst he said “The Borough would not get away with this if they said that no f*****g n*****s were allowed to attend” and that he was being treated “like a n****r in the woodpile”.  The junior colleague was mixed race and had at the time believed that the comments were directed at her.  Mr Risby was suspended and escorted from the office.

Despite arguing that he was just trying to make a point the Borough considered that Mr Risby had used offensive and racist language and behaved unreasonably towards colleagues and managers.  He was therefore dismissed following a Disciplinary Investigation and Hearing.

Mr Risby brought claims for unfair dismissal and discrimination arising from disability.  His argument in relation to his discrimination claim was that the incident only arose as a result of his disability and therefore his dismissal was discrimination arising from his disability.  An Employment Tribunal dismissed Mr Risby’s claims, setting out that his outburst was not a symptom of his disability and that there was no direct link between the disability and his dismissal. A discrimination claim could not be made out. He appealed to the EAT.

Decision

The EAT allowed Mr Risby’s appeal. The EAT found that on the face of it his treatment could amount to discrimination arising from a disability.  It is important to make it clear at the outset that the EAT remitted the case back to the Employment Tribunal to re-hear the facts.

The main point made by the EAT is that there only needs to be a very loose connection between somebody’s conduct and any disability.  The EAT said that if Mr Risby had not been in a wheelchair he wouldn’t have been angered by the Borough’s decision and said that his misconduct was the “product of indignation caused by that decision”.

The EAT said that his disability was “an effective cause of that indignation and so of his conduct.”  On this basis, it was necessary for the Employment Tribunal to consider whether the Borough’s actions in dismissing Mr Risby were a proportionate means of achieving the legitimate aim of ensuring and promoting its Equal Opportunities Policy.  The Employment Tribunal had failed to do this.

Comment

The important thing for employers to note from this case is to tread carefully if an employee’s misconduct arises in a situation that could be connected to their disability.

The EAT’s decision seems to set a relatively low benchmark for an employee to demonstrate a connection between their disability and any conduct. An employee only needs to show a loose connection to be able to give rise to such claim.  That doesn’t mean that claims will always succeed as an employer will have an opportunity to show that any treatment was a proportionate means of achieving a legitimate aim.

If you have any queries relating to discrimination or disciplinary proceedings or have any other employment law/H queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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