Did inappropriate conduct arise from an employee’s disability?

The Employment Appeal Tribunal (EAT) in the case of McQueen v General Optical Council has recently considered whether an employee’s aggressive conduct arose in consequence of his disabilities for the purposes of a discrimination claim.

Background

The Claimant was employed by General Optical Council (the Respondent) as a registration officer. The Claimant has a number of neurological conditions which caused some difficulties when interacting in the workplace. It was accepted that these conditions amounted to disabilities for the purpose of section 15 of the Equality Act 2010 (EqA 2010).

As a result of some incidents of inappropriate behaviour between the Claimant and one of his senior colleagues, described as a‘meltdown’ by the Tribunal, the Respondent took medical advice and sought to introduce working arrangements to alleviate the risk of interactions escalating between colleagues. Further incidents occurred between the Claimant and various colleagues, including conflict over a new job description, he was issued with a written warning for failing to follow instructions in 2016 and he was also challenged about his habit of standing up at his desk and speaking loudly to colleagues. In 2017 he was subject to disciplinary action again and was warned that he could face dismissal as he had already had a written warning and the allegation could amount to serious misconduct. The Claimant was not happy with the outcome and brought a grievance complaint.

Following a protracted grievance process, the Claimant brought two Tribunal claims in which he argued that he had been subjected to unfavourable treatment, because of something arising in consequence of his disability under s15 EqA 2010.

The Law

Section 15(1) of the EqA 2010 provides that ‘discrimination arising from disability’ occurs where both:

  • A treats B unfavourably because of something arising in consequence of B’s disability.
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim (the objective justification defence).

Decision

The Employment Tribunal (ET) dismissed his claim and held that the behaviours and incidents that had occurred did not arise as a result of his disabilities, instead it was as a result of habit, or short temper and resenting being told what to do. The Claimant appealed.

The EAT upheld the Tribunal’s decision and dismissed the appeal. The EAT reiterated that there had been no disability discrimination and found that the Claimant’s disabilities played no part in his conduct. The EAT was of the view that although the Claimant attributed his loud and aggressive behaviour to his disabilities, the Tribunal was not bound by the Claimant’s self-assessment and was entitled to reject it on medical evidence.

Comment

This case highlights that although previous case law established that there only needs to be a loose connection between the unfavourable treatment and the ‘something arising out of a disability’ for a disability discrimination case to be established under section 15 of the Equality Act, it can be difficult  in cases where an employee suffers from one or more disabilities, to establish whether behaviour or actions are related or to a disability or not.

When employers are dealing with an employee whose individual personality or behaviour can present a challenge to other colleagues, it is advised that consideration is given to whether there is any potential relation to any known health condition(s) and, if so, steps should be taken to seek medical advice and measures put in place to address the situation to minimise the risk a claim of disability discrimination.

Case Reference: McQueen v General Optical Council [2023] EAT 36

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