How to avoid the disability discrimination trap

19 Apr 2017 By Sally Christopher and Richard Loxley

The concept of 'discrimination arising from disability' is a developing area of complexity, and employers must be careful of the pitfalls

Such a disability discrimination claim is established where an employee is treated unfavourably ‘because of something arising in consequence of' the employee's disability, where it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim’. Applying this legal test has delivered what many will view as surprising results for the employers in question.

The faintest of links might be enough

In Risby v London Borough of Waltham Fores, the Employment Appeal Tribunal (EAT) decided that there only needs to be a loose causal link between an employee's disability and their conduct to establish discrimination arising from disability, and to shift the burden back to the employer to justify the treatment.

Mr Risby, who was paraplegic, lost his temper when he learned that his employer had moved a workshop venue to a basement that was inaccessible to him as a wheelchair user. He shouted at a junior colleague and used racially offensive language during two separate altercations. He was dismissed for gross misconduct. The EAT found that all that was required when determining the reason for the unfavourable treatment (his dismissal) was for Mr Risby to show that his conduct arose in consequence of his disability. It concluded that, had Mr Risby not been disabled, he would not have been angered by the change of venue. His misconduct was the product of that indignation and therefore his disability was the effective cause.

Knowledge of the consequences of disability not required

The boundaries were pushed even further in City of York Council v Grosset. Here, the EAT considered whether it was necessary for an employer to have knowledge of the consequences of a disability for its actions to be considered discriminatory.

Mr Grosset, who had cystic fibrosis, was head of English at a council-run school. He was dismissed for gross misconduct after he showed an 18-rated film (Halloween) to a class of vulnerable 15 and 16-year-olds. When challenged, he accepted that showing the film had been inappropriate but argued that he had been affected by stress, a side effect of his disability. The council did not accept this, or the suggestion that it had led to a momentary loss of judgement, because there were several points at which Mr Grosset could have stopped the film. He also failed to appreciate the seriousness of the matter and showed no remorse.

After his dismissal, medical evidence established that there had in fact been a link between Mr Grosset's disability and his misconduct. This meant he had been treated unfavourably because of something arising from his disability. This was despite the council having reasonably concluded, on the basis of medical evidence at the time of dismissal, that Mr Grosset's disability was not a relevant factor. Although the council had clear and legitimate aims in reaching the decision to dismiss, not least the safeguarding of children, the EAT found that dismissal was not proportionate. The council was therefore found guilty of discrimination. The fact that it did not intend to discriminate was irrelevant.

What are the implications for employers?

These cases demonstrate the importance of giving full consideration to the impact a disability might have on an employee, even where it might not be obvious.

Where employees facing misconduct charges try to establish a link to disability, they should be asked to provide supporting medical evidence. However, given the practical difficulties an employer might face in establishing that there is no such link, justification will be the key. To ensure they remain on the right side of the law, employers must focus on demonstrating and documenting why their actions are proportionate and that there is not a less discriminatory course of action to achieve the legitimate aims in question.

Sally Christopher is an associate, and Richard Loxley a partner, in the employment and pensions group at DAC Beachcroft

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