Link between conduct and disability for discrimination claim

May 2016

Mr Risby is a paraplegic who was employed by London Borough of Waltham Forest (LBWF) for 23 years until he was summarily dismissed for gross misconduct. (Risby v London Borough of Waltham Forest).

Mr Risby lost his temper when he learned his employer had decided to move a course to a basement venue, inaccessible to him as a wheelchair user. Mr Risby’s comments included obscene language and overtly racist statements. Mr Risby was unaware that his colleague was of mixed race and she believed that the comment was directed at her. He was promptly suspended and following a disciplinary investigation and hearing, summarily dismissed.

Mr Risby’s claims for unfair dismissal and discrimination arising from disability were dismissed by a tribunal, which decided there was no direct link between his disability and his behaviour.

The employment appeal tribunal (EAT) allowed the appeal and held that there only needs to be a loose causal link between an employee’s conduct and their disability for a discrimination arising from disability claim to be made out.

The employee’s tendency to be short tempered was a personality trait unrelated to his disability of paraplegia. However, the situation only arose because the employee was disabled and it was therefore incorrect for the tribunal to find that the misconduct was unrelated to the employee’s disability. The case was remitted back to the tribunal for rehearing.

This case seems to loosen the causal link between the disability and “something arising in consequence of the disability” one step further than the example set out in the EHRC Code, of an employee who loses their temper because their disability has caused them to be in severe pain. At the rehearing, it will be open to the LBWF to defend Mr Risby’s discrimination arising from disability claim on the basis that its actions in dismissing him were a proportionate means of achieving the legitimate aim of upholding its equal opportunities policy. This decision should not be taken as a suggestion that it is incorrect to sanction an employee in Mr Risby’s situation. However, the finding may be that it would have been proportionate for the LBWF to issue a final warning rather than dismiss Mr Risby in the circumstances.