If an employee has angry outbursts at work, their employer may be unsure of how to proceed if the employee claims that their behaviour is linked to a disability and they have been treated unfavourably.
How should an employer assess whether the unfavourable treatment was ‘because of’ something arising in consequence of an employee’s disability – or ‘because of’ something else, such as having a bad temper?
The recent case of McQueen v the General Optical Council provides some helpful guidance. The Employment Appeal Tribunal explained that in a discrimination ‘arising from’ disability claim, there must be enough of a causal connection between the ‘unfavourable treatment’ and the ‘something’ which arises in consequence of the disability.
There are four main types of disability discrimination:
- Direct discrimination.
- Indirect discrimination.
- Discrimination ‘arising from’ disability.
- Failure to make reasonable adjustments.
Discrimination “arising from disability” occurs where:
- a person is treated unfavourably because of something arising in consequence of their disability; and
- that treatment is not justified.
The ‘something arising in consequence’ of disability can be wide – it may involve various factors such as difficulty in using specific equipment, adhering to a particular diet, or being unable to walk without assistance, for instance.
What are the facts of the case?
Mr McQueen was employed as a registration officer by the General Optical Council.
It was accepted that he has dyslexia, some hearing loss, some symptoms of Asperger’s Syndrome, and neurodiversity. These caused some difficulties with his interactions in the workplace.
Medical evidence indicated that, in situations of stress or anxiety, he would raise his voice and use aggressive mannerisms, and on occasions, with inappropriate speech and tone.
There were two angry confrontations between a senior colleague and Mr McQueen which led to a “meltdown” when he was rude, disrespectful, and aggressive, and which left a senior colleague in tears on one of the occasions. There were various other examples of incidents in which Mr McQueen caused conflict and was disruptive. These incidents led to warnings, disciplinary measures, and protracted grievance processes.
Mr McQueen claimed that he had been subjected to unfavourable treatment because of something arising in consequence of his disability.
What did the Tribunal decide?
An Employment Tribunal dismissed Mr McQueen’s claims. It found that, when Mr McQueen went into a “meltdown” or became loud and angry, his disabilities played no part in his conduct. He had behaved as he did because he had a short temper and resented being told what to do.
Mr McQueen appealed.
What did the Employment Appeal Tribunal decide?
The EAT upheld the ET’s decision and provided guidance on how a decision on the treatment could be reached by asking:
- what are the disabilities?
- what are their effects?
- what unfavourable treatment is alleged and proved?
- was that unfavourable treatment ‘because of’ an effect or effects of the disabilities?
What can employers learn from the case?
The causation test in claims for discrimination arising from disability is quite loose, but there must still be a connection between the “something” leading to the unfavourable treatment and the employee’s disability.
The connection will usually be fact-specific and dependent on medical evidence. Mr McQueen may have displayed symptoms characteristic of his disabilities, but it is not certain that such behaviour arose in consequence of his disabilities.
When an employee has several disabilities, all with varying symptoms, it may be difficult to predict whether a particular kind of angry behaviour is something which arises in consequence of one or more of the disabilities. By applying the helpful structured list of questions set out by the EAT’s ruling, it becomes easier to assess whether a causal connection does in fact exist.
Although employers should always be thorough when applying a disciplinary process, this case highlights the extra considerations to bear in mind where an employee has a disability. But following the structure above should help employers understand when treatment may fall within the restrictions on discrimination arising from disability.
Remembering always, that even if treatment is because of something arising from a disability, it could still be lawful if it is justified.
10th April 2023