Disciplining workers for conduct that may be connected to a disability

Disciplining workers for conduct that may be connected to a disability

It’s an unfortunate reality that people with disabilities suffer a range of mistreatment in the workplace. This mistreatment will not always take the form of overt remarks regarding their disabilities, it can often appear more insidiously through unspoken disadvantages or non-facilitation of the particular needs that arise from their condition. The Equality Act 2010 (‘Equality Act’) contains provisions to protect disabled workers from the less direct forms of discrimination.

Under section 15 of the Equality Act, it is unlawful for an employer to treat a worker unfavourably because of something arising in consequence of the worker’s disability. For example, it would be unlawful under section 15 to penalise a worker for spelling errors if the worker makes those spelling errors due to their dyslexia. However, an employer can defend this type of claim if they can prove that the treatment was a proportionate means of achieving a legitimate aim. For example,  a newspaper may be able to justify penalising editors for spelling errors due to the nature of their role in the business.

In the recent case of Bodis v Lindfield Christian Care Home, the Employment Appeal Tribunal (‘EAT’) considered section 15 of the Equality Act. Specifically, the EAT considered the question of whether an employer can be found to have breached section 15, if the worker’s conduct arising from their disability was only a minor contributing factor to the employer’s treatment of them. 

The worker in this case suffered from depression and anxiety. The employer found her responsible for numerous instances of misconduct and dismissed her, but the Employment Tribunal found that a minor reason for the decision to dismiss was that the worker gave short and evasive answers during an investigatory interview.

The Employment Tribunal accepted that the worker’s short and evasive answers to questions arose because of her depression and anxiety, which amounted to disabilities. However, because her answering style was only a ‘trivial’ influence in the employer’s decision to dismiss her and not an ‘effective cause’, the Employment Tribunal rejected the claim that the employer had breached section 15 of the Equality Act in making its decision. 

The EAT disagreed with the Employment Tribunal, finding that the conduct arising from a worker’s disability can be a minor component of an employer’s reason for unfavourable treatment and still amount to a breach of section 15, as long as said conduct was an ‘effective cause’. The EAT found that the worker’s short and evasive answering style, arising from her disabilities, was an effective cause even if only a minor part of the employer’s justification to dismiss the worker. However, the EAT also found that the employer could justify its treatment of the worker as a proportionate means of achieving a legitimate aim, so the claim for breach of section 15 still failed. 

This case serves as a reminder that in any disciplinary proceedings, employers must take into account a worker’s disability and how it may factor into the conduct that is of concern. If an employer disciplines a worker for conduct that is connected to that worker’s disability, they need to have justification for taking disciplinary action. 

This blog was written by Yavnik Ganguly, Solicitor at didlaw.