Employee’s aggressive conduct did not arise from disabilities

EAT confirms Tribunal decision that challenging the claimant’s confrontational behaviour was not discrimination under s.15 Equality Act.

Awareness of neurodiversity in UK workplaces has grown considerably in recent years thanks to the efforts of a number of campaign groups and government initiatives seeking to promote inclusiveness.

There are many positives to a neurodiverse workforce, with employers being able to benefit from a workforce that approaches and sees issues and problems differently, which in turn can lead to new and innovative approaches and problem solving. More broadly, there are societal benefits of an inclusive workforce. 

Employers of course need to be aware of the potential for discrimination when policies and procedures are applied to neurodiverse staff. Dealing with performance or conduct issues means careful thought needs to be given to the potential risk of discriminating against neurodiverse staff when the employer knows or suspects neurodiversity is a factor.

Employers need to be mindful of the application of section 15 of the Equality Act 2010 (EqA) which provides protection against unfavourable treatment because of something ‘arising in consequence’ of a disability. This could, for example, mean that disciplining a neurodiverse employee for conduct which arises from their condition may be a breach of s.15 EqA.

A recent decision by the Employment Appeal Tribunal considered such a case.

Case: McQueen -v- General Optical Council [2023]

M has dyslexia, symptoms of Asperger’s Syndrome, left-sided hearing loss and neurodiversity. These combine to create difficulties for M with workplace interactions. In situations of stress, anxiety or conflict, M would raise his voice and adopt aggressive mannerisms with inappropriate speech and tone. M had medical evidence to support the link between these issues and his conditions.

Whilst at work in 2015 M challenged the instruction of a senior colleague in a rude and disrespectful manner, described as being wholly inappropriate. M was warned that repetition of this behaviour may lead to disciplinary action and he was referred to occupational health. Changes were made to his method of working. Whilst employed by GOC, M insisted that he be allowed to stand up to speak, which was not agreed.

Another confrontation between M and the same colleague occurred in 2016 which left his colleague in tears. M asked that his colleague undertake some disability awareness training.

Further disagreements followed and in 2017 M was subject to disciplinary action which was not upheld. M brought a grievance about the disciplinary charges made against him. This became protracted and M eventually brought claims to the Employment Tribunal. M raised claims of discrimination on the grounds of race, sex and disability, victimisation and harassment. He alleged that he had been subject to unfavourable treatment because of something arising in consequence of his disabilities under s.15 EqA.

At Tribunal GOC accepted that some consequences followed from M’s disabilities. For example, M needed verbal communications to be followed by written instructions. However, GOC denied that M’s requests to stand to speak and conflicts with colleagues arose from his disabilities such as dyslexia or Asperger’s, and therefore when he was disciplined for this he was not subjected to unfavourable treatment arising as a consequence of a disability. The Tribunal agreed, finding that M’s temper and resentment at being told what to do were the cause of these. Only the claim for victimisation was upheld.

Appeal

M appealed the Tribunal’s decision, arguing, amongst other things, that the disability does not necessarily need to be the sole or even the main reason for the ‘something’ that arises in consequence of it for the purposes of s.15 EqA – instead, a significant or more than trivial influence would meet the test.

The EAT upheld the Tribunal’s decision, noting that the reasoning used was not flawed by any error of legal principle. The Tribunal had noted the disabilities and made findings about their extent and effect. The Tribunal was found to have been clear when M’s disabilities related to the problems he faced at work and when they had not. Where M’s disabilities were found not to be the cause of his conduct, the issue of whether the treatment M received was ‘because of’ a disability did not arise.

The EAT held that whilst M submitted that his disabilities played a major role in his loud and aggressive behaviour, the Tribunal was not bound by his self-assessment. It also held that the Tribunal was entitled to reject some aspects of the medical evidence regarding the effects of M’s disabilities.

Comment

The EAT’s decision in this case will provide some reassurance for employers, showing as it does that Tribunals will take care to study the facts and claims made and the causal links between a disability and the “something” which arises from it – here the conduct of the claimant.

When undertaking disciplinary processes where mental or physical health issues may have led to the conduct in question, employers should seek a medical opinion on whether or not the conduct arose from a disability.

A claim under s.15 EqA can be defended if the unfavourable treatment (for example carrying out a disciplinary process) can be justified as a proportionate means of achieving a legitimate aim. Employers will need to be able to evidence their legitimate aim in treating the employee in this way, and that the action taken was proportionate when balanced with the impact of the treatment on the employee. 

The EAT noted in this case that the Tribunal’s decision lacked clarity. To assist in these matters, the EAT outlined how Tribunals should structure decisions for the purposes of s.15 EqA, as follows:

i) what are the disabilities?

ii) what are their effects?

iii) what unfavourable treatment is alleged to have taken place within the time limit for the claim and is this proved?

iv) was the unfavourable treatment ‘because of’ an effect or effects of the disabilities?

This framework will also prove useful for employers and their advisers in helping to assess claims.