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The Employment Appeal Tribunal (EAT) has found that there only needs to be a loose causal connection between an employee's conduct and their disability for a discrimination arising from disability claim to be established.
In Risby v London Borough of Waltham Forest, Mr Risby, who was a paraplegic, was dismissed for gross misconduct after losing his temper when he found out that his employer, London Borough of Waltham Forest (LBWF), had decided to move workshops he was required to attend a venue inaccessible to him in a wheelchair.
When Mr Risby found out, he shouted at a junior colleague, swearing and using racist language.
These comments brought to the colleague, who Mr Risby was unaware was of mixed race, close to tears. As a result, Mr Risby was suspended and escorted from the office. He was summarily dismissed for using offensive and racist language and acting inappropriately towards colleagues.
Mr Risby brought claims for unfair dismissal and discrimination arising from disability. Discrimination arising from disability occurs when A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is justified.
The ET's decision
The Employment Tribunal (ET) held that his dismissal was fair and that there was no discrimination. The ET found that Mr Risby's short temper was a personality trait and not related to any disability and that there was no direct causal link between his behaviour and his physical disability. Mr Risby appealed to the EAT.
The EAT decision
The EAT allowed the appeal. It found that:
Mr Risby's loss of temper was the product of indignation caused by the decision to hold the workshop in a room he could not access; and
that his disability was the cause of that indignation, and therefore his conduct.
This was enough, in the EAT's view, to show that the loss of temper was 'something arising in consequence' of Mr Risby's disability.
The case was remitted back to the ET for a further hearing to establish whether, as a result of the EAT's finding, it was reasonable and fair to dismiss Mr Risby and whether LBWF could defend the discrimination claim by establishing that the dismissal was a proportionate means of achieving the legitimate aim of ensuring and promoting LBWF's equal opportunities policy.
This case is a reminder of the relatively low hurdle for employees to establish that alleged unfavourable treatment was because of something arising from their disability. It will be interesting to see whether this decision is appealed, as it does seem to go further than the existing case law, given that the ET had found as a matter of fact that Mr Risby's short temper was not related to his disability.
When the case is remitted back to the ET, it may be that LBWF can justify its actions as a proportionate means of achieving a legitimate aim. What we can say is that it will not necessarily be incorrect for employers to sanction employees in these circumstances but employers should always consider whether any sanction is proportionate.