In the case of McQueen v The General Optical Council, the Employment Tribunal held that where an employee had been disciplined for aggressive conduct in the workplace, it was not discrimination arising from a disability, despite the employee claiming the aggressive conduct arose from his health conditions. The EAT have recently considered the case and confirmed that the Employment Tribunal was entitled to dismiss the claim on this basis.
In the case, the employee had several disabilities including Asperger’s, neurodiversity, dyslexia and hearing loss. He was subject to a disciplinary due to aggressive conduct in the workplace. Within his claim, he claimed that the ‘aggression’ arose as a consequence of his disabilities.
The Employment Tribunal did not accept this argument. It held that the aggressive conduct arose due to the Claimant having a short temper and resenting being told what to do.
The employee appealed the decision to the EAT and claimed the Employment Tribunal should have considered a dual or multi-factor causation test, to determine whether any part of the disabilities had been a factor in the aggressive conduct, and therefore that the disciplinary action was something arising from a disability.
The EAT rejected this, finding that as the disabilities played no part in the Claimant’s conduct, there was no need to consider whether the treatment was partly due to disabilities.
The EAT gave guidance on questions to ask when making decisions about claims where it is alleged that discrimination arises from a disability, as follows:-
(i) what are the disabilities;
(ii) what are their effects;
(iii) what unfavourable treatment is alleged in time and proved and;
(iv) was that unfavourable treatment “because of” an effect or effects of the disabilities.
Whilst the Employment Tribunal did not consider this, as it didn’t need to due to its findings, I consider that even if it was established that the aggressive conduct arose from the disabilities, the decision to take disciplinary action may have been found to be ‘objectively justified’. This is because clearly, there would be many concerns about having someone displaying aggressive conduct in the workplace. Objective justification can be a defence to a claim for discrimination arising from a disability.
If you have a similar situation that you need advice on, or want to know more about discrimination arising from disability claims, please do not hesitate to contact a member of the employment team at employment@glaisyers.com
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