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By Kate Hindmarch

Jul 15th, 2016

Discrimination Arising from Disability Claims

Dismissing a disabled employee is always a difficult decision for an employer to take, in part due to the risk of a costly claim for disability discrimination. Those decisions have just been made more difficult following a decision from the EAT, concerning a case of discrimination arising from a disability.

In Risby v London Borough of Waltham Forest, a case concerning a disabled employee who was dismissed after losing his temper after learning that a workshop had been moved to a venue inaccessible to wheelchair users, the EAT has ruled that there only needs to be a “loose causal link” between an employee's conduct and their disability for their claim to be made out. In this particular case, the EAT found that Mr Risby’s disability was one of the effective causes of his conduct.

Background

Mr Risby is a paraplegic who was employed by London Borough of Waltham Forest (LBWF) in a management role. His employer had organised a workshop for managers at an external venue which had wheelchair access. However, before the training took place, the chief executive of LBWF decided that it was no longer cost effective to hold workshops at external venues. Consequently, the venue was changed to the basement of an LBWF owned premise which was inaccessible to wheelchair users.

The decision angered Mr Risby and in response, he lost his temper which cumulated in him using abusive and racist language in front of a junior colleague, who unbeknown to him, was mixed race. Following disciplinary proceedings, Mr Risby was dismissed for gross misconduct.

Mr Risby brought claims in the Employment Tribunal for unfair dismissal and discrimination arising from disability. At first instance, the Tribunal dismissed Mr Risby’s claims. The Tribunal found that there was no logical link between Mr Risby’s conduct and his disability. Instead, it was held that Mr Risby’s short temper was a personality trait and was therefore unconnected to his disability.

Mr Risby appealed against the decision.

The EAT’s Decision

The EAT held that the Tribunal had erred in dismissing Mr Risby’s claim of discrimination arising from a disability. The EAT held that it was enough to demonstrate that the conduct had arisen as a consequence of the disability.

The EAT concluded in this case that had Mr Risby not been disabled, he would not have lost his temper at his employer’s decision to change the venue to one that was inaccessible to wheelchair users. Mr Risby’s disability was the effective cause of his indignation at the decision and therefore his conduct arose as a consequence of his disability. The fact that Mr Risby’s short temper was a personality trait and also contributed to his conduct did not mean that the element of his conduct that was linked to his disability should be disregarded.

Comment

Employers should take the following points from the EAT’s decision:

1. The case loosens the causal link test in disability arising from discrimination claims. Previous guidance suggested that a direct link between the disability and the conduct would be required for a claim of this kind to succeed; for instance, where an employee loses his temper because his disability causes him severe pain. In contrast, the ruling suggests that, even in a chain with several causal links, the employee may now succeed in a discrimination arising from disability claim.

2. Employers should be aware that the ruling has not confirmed that the dismissal of Mr Risby was an inappropriate sanction. At the remitted Tribunal hearing, it will be up to the employer to demonstrate that the dismissal was a proportionate means of achieving a legitimate aim, which in this case, was to ensure and promote its equal opportunities policies. 

In the meantime, employers should take a careful approach when taking any decisions which may amount to unfavourable treatment of a disabled person, and should consider whether the treatment may relate to something associated with the employee’s disability and therefore whether the treatment is truly proportionate in the circumstances.

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