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Disability Discrimination

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Was the employee’s misconduct something that arose from his disability, meaning that the resulting disciplinary action was discriminatory?

No, says the EAT in McQueen v General Optical Council (available here).

Background:  Under s15 of the Equality Act 2010, an employer discriminates against a disabled employee if they treat them less favourably because of ‘something arising in consequence’ of their disability. The ‘something’ can be wide ranging and will depend on an individual circumstances, but examples include regular rest breaks, hospital appointments, and behavioural issues. (However, a claim will not succeed if, among other things, the treatment can be objectively justified as a proportionate means of achieving a legitimate aim).

 Facts:  Mr McQueen, the employee, worked as a registration officer for the General Optical Council (GOC). He was disabled due to conditions including dyslexia, asperger’s syndrome, neurodiversity and left sided hearing loss.

GOC sought advice from its occupational health service (‘OH’) in respect of Mr McQueen’s disabilities and their impact in the workplace. The OH advice indicated that his conditions could cause difficulties with his interactions in the workplace. In particular, in situations of stress, anxiety or conflict, he would raise his voice and adopt mannerisms suggestive of aggression, with inappropriate speech and tone.

GOC put in place the support recommended by OH which included putting any changes to instructions in an email to him (rather than through oral communication alone) and providing him with a ‘recording pen’ to record conversations, so he could check them afterwards.

Despite these adjustments, Mr McQueen had several ‘meltdowns’ in which he displayed loud and angry or otherwise unacceptable behaviour and he was disciplined as a result.

Mr McQueen brought a Tribunal claim under s15 Equality Act. He said that his conduct was ‘something arising from his disability’ and that his subsequent treatment (the disciplinary action) was discriminatory.

GOC argued that the conduct for which Mr McQueen was disciplined did not arise from his disabilities.

Tribunal decision

 The Tribunal dismissed Mr McQueen’s claim. It agreed with the GOC (supported by medical evidence) that Mr McQueen’s misconduct on the specific occasions where he had been in conflict with co-workers, had nothing to do with his disabilities. Although his disability could potentially cause him to ‘melt down’, on these occasions it was because he resented being told what to do, had a short temper, and lost it.  Mr McQueen appealed to the EAT.

EAT decision

The EAT dismissed the appeal. The Tribunal was entitled to find that Mr McQueen’s disabilities had played no part in his misconduct.

However, the EAT did say that the Tribunal’s decision would have been better if it had been structured in a more systematic way and recommended that Tribunals approach such claims by asking the following questions:

  • What are the disabilities?
  • What are their effects?
  • What unfavourable treatment is alleged in time and proved?
  • Was that unfavourable treatment ‘because of’ an effect or effects of the disabilities?


This is a helpful decision for employers. Even though there was medical evidence showing that the employee was disabled, this was too general to link the disability with the misconduct and the disciplinary action. To succeed in his claim, the employee would have needed more precise evidence to link his disability to each individual act of misconduct for which he was disciplined.

However, the claim only failed in this case because the Tribunal found the misconduct did not arise at all from the disability. If the Tribunal had found even a loose connection between the disabilities and the disciplinary action, this would have been discriminatory. At which point the employer would have needed to defend the claim by arguing that such action was justified.

Some recommendations for employers following this case:

  • Seek occupational health advice in order to determine the extent to which an employee’s disability might be impacting on them at work;
  • Follow through any recommendations made;
  • Document the impact that the employee’s conduct is having on colleagues (this will help with justifying any less favourable treatment such as disciplinary action); and
  • Obtain medical evidence in relation to how the employee’s disabilities relate to the specific conduct in respect of which you propose to/have taken action.
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