Certain conditions which can amount to a disability in law will have an impact on an individual’s ability to manage their behaviour, social skills, or conduct.
In these cases, an employer who disciplines an employee for something over which they may have little or no control is at risk of a discrimination claim under section 15 of the Equality Act.
What is the Section 15 of disability Act?
Section 15, discrimination arising from a disability, is essentially a form of indirect discrimination.
The employee is not discriminated against because of their condition but rather due to something connected with it. This is most commonly triggered by inflexible sickness absence policies where the absences are due to medical appointments, for example.
But what happens when an employee is disabled, demonstrates unacceptable workplace behaviour and is dismissed, but the disabilities had no effect on the behaviour itself?
McQueen v The General Optical Council
In this case, the Claimant was put through a disciplinary process after the employer found instances of unacceptable aggressive behaviour. A manager had complained about his disrespectful manner of speaking and confrontational gestures and body language.
Despite a warning, these behaviours continued, and formal disciplinary steps were taken. A grievance and period of sickness absence both followed and, in 2019, the Claimant left his employment.
What was the claim?
He ultimately brought a section 15 claim to the Employment Tribunal. He argued that he had a need “not to be approached in a seemingly confrontational manner” and “to stand up and speak”, and that both of these arose from his disabilities.
These disabilities were agreed as dyslexia, symptoms of Asperger’s, neurodiversity, and left-side hearing loss. Physical adjustments to the workplace and a practice of following up written instructions in writing were both accepted as requirements.
What happened at the tribunal?
However, the Respondent did not accept that the disabilities justified the alleged aggressive behaviours. The Tribunal was therefore required to consider this point on medical evidence and its own factual findings.
On this evidence, the original Tribunal found that, while such conditions could, for this Claimant, cause him to behave in a “meltdown” like manner, that was not what had happened on all occasions.
The Section 15 claims were dismissed by the original Tribunal on this basis. The Claimant appealed this element of the liability judgment to the EAT.
What did the Employment Appeal Tribunal decide?
The EAT was then asked to consider whether the original Tribunal had incorrectly applied the test for a successful Section 15 claim. The Tribunal’s reasoning had been somewhat confusing in that it had arguably approached the test backwards but the EAT could find no actual error of law on which to grant an appeal.
Indeed, the EAT was very critical of the structure of the judgement, but ultimately reached the same conclusion on the established facts.
The Tribunal had not incorrectly applied the law once their reasoning had been unpicked and the EAT could not find that the Tribunal was wrong to establish that the Claimant’s disabilities had not caused his behaviour on the incidents in question.
If the disability had no effect on the Claimant’s conduct, it was not relevant to consider whether any subsequent action could be said to be “because of” the disability.
The appeal was therefore dismissed.
An Employment Solicitor’s View
Chris Dobbs, Employment Solicitor at Frettens, said: “Section 15 claims are important for employees because they fix a gap between direct discrimination and failure to make reasonable adjustments. It also allows claims which do not sit comfortably in normal indirect discrimination.
That said, the Claimant does need to be able to prove the two basic elements: that the thing they claim happened did so as a result of their disability, and that they were discriminated against because of that thing.
In the above case, the first of these failed because the Claimant’s medical evidence did not support his version of events.”
What can employers take away from this?
Chris continues: “For an employer, defending these claims can be a difficulty. It helps to keep clear records of discussions with employees about their conditions and their effects as well as carefully noting the content and also conduct of meetings, whether formal or otherwise.
The best defence is, of course, avoiding the discrimination in the first place but this is not always so easily done.”
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