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Tag: disability discrimination

If an employee’s conduct arising from their disability is only a minor contributing cause of an employer’s unfavourable treatment, does that amount to discrimination arising from a disability?

Yes, said the EAT in Bodis v Lindfield Christian Care Home (available here).

Background: Under section 15 Equality Act 2010, a person discriminates against a disabled person if they treat them unfavourably because of something arising in consequence of the person’s disability. There is a defence available if the treatment was a proportionate means of achieving a legitimate aim.

Facts: Ms Bodis, the employee, was disabled with anxiety and depression and worked at Lindfield Christian Care Home. Complaints were raised about her disruptive behaviour (particularly in respect of harassment of other staff) and the employer investigated these concerns. During the disciplinary investigation the employee gave short and evasive answers to questions (due to her disability) and this was part of the reason that the employer decided to hold a disciplinary hearing. Following this hearing, the employee was summarily dismissed for gross misconduct.

The employee brought a Tribunal claim for unfavourable treatment (holding the disciplinary hearing) because of something arising in consequence of disability (her answers to the investigation questions).

Tribunal decision

The Tribunal dismissed the employee’s disability discrimination claim. It said that although the decision to hold a disciplinary hearing was to some extent influenced by the way in which she had answered questions) it was only to a trivial extent and had not affected the decision of the disciplinary panel to dismiss. Therefore it did not amount to ‘something arising in consequence of the disability’.

The Tribunal held that, in any event, the referral to a disciplinary hearing and dismissal were a proportionate means of achieving the legitimate aim of upholding disciplinary standards in circumstances in which there had been a breakdown in relations.

The employee appealed.

EAT decision

The EAT held that the Tribunal was wrong to have concluded that treatment was not because of something arising in consequence of disability. Even though the manner in which the employee answered the investigation questions was only a minor part of the reason for holding the disciplinary hearing, it was still capable of being something ‘arising from’ her disability.

However, as the employee had not challenged whether the unfavourable treatment was a proportionate means of achieving a legitimate aim, the employee’s appeal failed.

Implications: This is a good reminder that to succeed in a claim of discrimination arising from a disability, an employee’s disability only needs to be one of the effective causes of the unfavourable treatment – even if it is only plays a minor role.

Employers should consider the impact of an employee’s disability both on their misconduct and their demeanour and behaviour during the process. For example, certain mental impairments such as anxiety or depression could mean that an employee behaves more defensively or evasively in interviews.  If there is any uncertainty as to the impact, it would be a good idea to obtain medical advice on this.

If the employee’s disability may be a cause of any unfavourable treatment, employers should carefully consider whether they can justify the treatment as a proportionate means of achieving a legitimate aim.

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