In the case Risby v London Borough of Waltham Forest, the Employment Appeal Tribunal (EAT) had to decide whether dismissing a disabled employee for misconduct, after he lost his temper when complaining about a training venue with no wheelchair access, was discrimination.
Under the Equality Act 2010 (S.15) discrimination occurs where an employer treats employees unfavourably because of something arising in consequence of their disability, unless the company can show its treatment is a proportionate means of achieving a legitimate aim.
In this case, a local authority decided to stop using external venues for workshop events in order to save money. Risby, a risk and insurance manager, was due to attend a workshop which had its venue swapped from an external one with wheelchair access to the basement of a council-owned assembly hall with no wheelchair access. The change angered Risby, who was a wheelchair user. He shouted at a junior colleague, saying in a loud voice, which other staff could hear, that the council “would not get away with this if they said that no f******g n*****s were allowed to attend”.
The colleague, who was of mixed race, believed this comment was directed at her and was close to tears. Later, when the workshop organiser telephoned Risby, he told her in the hearing of another employee that he was being treated “like a n****r in the woodpile”. Following a disciplinary hearing, he was dismissed without notice for using offensive and racist language twice and behaving unacceptably towards managers and colleagues. He claimed unfair dismissal and disability discrimination.
An employment tribunal found there was no direct link between Risby’s physical disability and his angry behaviour and rejected his claims. Risby appealed, arguing that it was not necessary for a claimant’s disability to be the cause of the employer’s action in order for a discrimination claim to succeed.
The EAT upheld the appeal. It is not necessary for there to be a direct link between employees’ disabilities and their conduct for the Equality Act protections to apply. All that has to be established is that the employee’s disability was the cause of the behaviour. If Risby had not been disabled, he would not have been angered by the decision to hold the workshop in a venue he could not access. His misconduct was the result of indignation caused by that decision. His disability caused that indignation and so his dismissal arose out of his disability.
The error by the tribunal also affected the dismissal decision. The tribunal had acknowledged that if the claimant’s conduct was a consequence of disability, then some sanction other than summary dismissal may have been appropriate. The claims were sent back to the tribunal to decide whether dismissal was a proportionate way of achieving a legitimate aim under S.15 of the Act and reasonable in the circumstances.
Case law shows how the Equality Act should be used to balance employee and employer rights. In Hall v Chief Constable of West Yorkshire Police , the EAT held the disability itself does not have to be the cause of the treatment for a claim to succeed. In Basildon & Thurrock NHS Foundation Trust v Weerasinghe , the EAT ruled that a two-stage test applies: that ‘something’ arose as a consequence of the disability, and the treatment was because of that ‘something’.
This is underpinned by the Equality and Human Rights Commission employment statutory code of practice (paragraph 5.9) which states that the ‘consequences’ of a disability include anything which is the result, effect or outcome of the disability. In this case, the claimant’s indignation arose as an effect of his disability – the lack of wheelchair access meant he could not attend a meeting.
However, while the employee’s exasperation maybe understandable, the manner in which he made his annoyance known crossed the boundary of acceptable behaviour by any reasonable standard. So, although such conduct may be a consequence of disability, an employer can defend any alleged unfavourable treatment by showing that it had a legitimate aim, there was no other sanction available given all the circumstances, and the benefits to the organisation as a whole outweighed the discriminatory impact.
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