Earlier cases have made it clear that there need only be a loose causal connection between an employee’s conduct and their disability to be able to make out a claim of discrimination arising from a disability. The recent case of Risby v London Borough of Waltham Forest has arguably loosened things further.
Section 15(1) of the Equality Act 2010 (“EqA”) provides:
“(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
The Equality and Human Rights Commission (EHRC) Employment Statutory Code of Practice gives an example of this kind of discrimination:
“A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker’s disability, namely her loss of temper. There is a connection between the ‘something’ (that is, the loss of temper) that led to the treatment and her disability.” (Paragraph 5.9, EHRC Code.)
In this example, although the conduct is not a direct symptom of the disability, it is directly caused by it and an employer’s reaction to that conduct might amount to discrimination unless the treatment can be objectively justified.
In the Risby case, Mr Risby is a paraplegic who was due to attend a workshop organised by his employer. Initially this was to take place in a hired venue which was wheelchair accessible but, for cost reasons, the location was changed to an internal venue which was not accessible to Mr Risby. Mr Risby’s response to this was to lose his temper, and he used offensive and racist language within the hearing of other colleagues on more than one occasion. This included shouting at a junior colleague who was, unknown to Mr Risby, of mixed race, and who was unsurprisingly extremely upset. Mr Risby was summarily dismissed for gross misconduct and his appeal rejected on the basis that such behaviour could not be tolerated.
A claim of unfair dismissal and discrimination arising from a disability was dismissed by the employment tribunal. It found that his short temper was a personality trait and not related to his disability. This is in line with the EHRC’s example. Mr Risby appealed to the EAT.
The EAT allowed his appeal and sent his case back to the tribunal for redetermination. On the basis of previous cases, it was reasoned that the causal connection between the disability and the employee’s conduct need only be a loose one and all that needs to be established is that the conduct was a consequence of the disability. In this case, there were two causes of the conduct, one was his short temper which was not related to his disability but the other was his indignation at the Council’s decision. If Mr Risby had not been paraplegic, he would not have been angered by the change of venue and lost his temper. This seems to be a step beyond the example given by the EHRC.
It will now be for the employer to demonstrate to the tribunal that its dismissal of Mr Risby was a proportionate means of achieving the legitimate aim of promoting adherence to the Council’s equal opportunities policy. Where behavioural issues need to be addressed, employers should be very clear as to why the action or treatment was carried out, and be prepared to demonstrate that there was no less discriminatory way of addressing the problem. Otherwise, it now appears to be even easier for an employee to link certain behaviours to an alleged disability.