Yes, you can. Disability is not a shield to misconduct and will not prevent your employer from sanctioning you and even, in serious cases, dismissing you.
In Duncan v Fujitsu Services Ltd 2025 EAT 44 the Employment Appeal tribunal decided that Mr Duncan’s dismissal for sending inappropriate and offensive messages on Fujitsu’s Slack communications channel was an appropriate sanction. Mr Duncan was disabled by virtue of AHDH and ASD. The company knew of his disability from the start of his employment.
A previous case on this issue was Risby v London Borough of Waltham Forest where the EAT found that the claimant had a short temper which was not related to disability and which the Employment Tribunal found was responsible for his racist outburst. The EAT followed this decision in Duncan.
Although Mr Duncan’s comments were found to be something arising in consequence of disability the dismissal was found to be a proportionate response to some of the employer’s aims. The language included references to stabbing, calling colleagues cunts, saying he was going to kill people. For some of the comments the tribunal was not persuaded they arose from disability.
The company replied on the aims of preventing the use of threatening language about managers and colleagues, preventing harassment leading to a hostile environment and to prevent threats of violence directed repeatedly and forcefully against colleagues and managers. The company asserted 7 aims which were all held to be legitimate by the tribunal. The tribunal found that the use of such foul language and abusiveness were very strong and showed a profound lack of respect for the employer.
The Claimant appealed to the Employment Appeal Tribunal on the basis that he said the tribunal had (1) not considered whether the use of the language arose from the disability or (2) sufficiently analysed whether the dismissal was a proportionate means of achieving a legitimate aim (which roughly translated means that the employer had no lesser sanction that it could impose). The EAT dismissed the appeal.
The EAT held that it had considered whether the comments were an indirect consequence of disability, applying the Risby case. The EAT also considered whether the necessary balancing exercise on proportionality had been carried out and decided that dismissal was proportionate including considering alternatives to dismissal.
The initial tribunal had recorded in its judgment that Fujistsu’s dismissal letter had stated that the on-line chat showed deliberate hateful verbal abuse of colleagues and that on balance dismissal was appropriate.
Some of the remarks did arise in consequence of disability but the dismissal was lawful and the section 15 claim failed.
