Did an employee’s ‘meltdowns’ in work arise from his disability?
Discrimination arising from disability occurs where an employee is treated unfavourably by their employer because of something arising in consequence of the employee’s disability; and the employer cannot show that the treatment is justified. The ‘something arising in consequence’ of the employee’s disability might include anything which is the result or effect of the disability. In a recent case, the Employment Appeal Tribunal considered whether an employee’s ‘meltdowns’ arose from his disabilities.
Mr M suffered from dyslexia, symptoms of Asperger’s Syndrome, neurodiversity and left sided hearing loss. It was accepted that these were disabilities under the Equality Act.
Mr M was involved in ‘difficult interactions’ with colleagues. The ‘first meltdown’ related to Mr M challenging an instruction from a senior colleague, Ms P. She complained that his response had been rude, disrespectful and inappropriate, with aggressive gestures and body language. Mr M was referred to Occupational Health and changes were made to his method of working, so that he would be given emailed instructions if asked to change the way a task was to be done. After a ‘second meltdown’, Ms P was left in tears.
There were further difficulties, including a dispute over Mr M’s annual appraisal and a written warning for failing to follow instructions. Mr M was asked not to stand up at his desk to speak to colleagues because he had a loud voice and it was disruptive. Following further disciplinary proceedings and a grievance process, Mr M issued a number of claims in the Employment Tribunal.
Disability discrimination claim
Mr M’s claims included discrimination arising from disability. He argued that the medical evidence drew a link between his disabilities and his conduct. The employer accepted that some adjustments were required arising from Mr M’s disability. These were that Mr M needed written instructions to back up verbal communications and some physical adjustments were required to the workplace. However, the employer did not accept that there was a need, arising from disability, not to approach Mr M in a seemingly confrontational manner or for him to stand up when speaking to colleagues.
The issue for the Tribunal to decide was whether Mr M’s conduct at work, in particular his aggressive conduct and short temper, arose from disability. It found that Mr M’s outbursts were not caused by the disabilities. It found that Mr M’s behaviour was because he had a short temper and resented being told what to do, or being told that he had done something wrong. It found that his insistence on standing up arose out of habit. The Tribunal dismissed the claim.
The Employment Appeal Tribunal
Mr M appealed to the Employment Appeal Tribunal (EAT). The EAT noted that the issues to consider are a) what are the disabilities, b) what are their effects, c) what unfavourable treatment is alleged and proved and d) was that unfavourable treatment ‘because of’ an effect or effects of the disabilities.
The EAT upheld the Tribunal’s judgment and dismissed the appeal. The Tribunal had noted the disabilities, which were accepted, and found that the effects were limited to a requirement for written instructions to back up verbal communications and a need for physical adjustments to the workplace. The Tribunal found that when Mr M went into ‘meltdown’, this was not caused by his disabilities. Once the Tribunal had found that Mr M’s conduct when he came into conflict with his colleagues did not arise in consequence of his disabilities, the question of whether there had been unfavourable treatment because of his disabilities did not arise.
The Tribunal found, based on the specific facts of the case, that Mr M’s conduct was not caused by his disabilities. However, this issue will always depend on the circumstances of the particular case and there may be situations where there is a causal link between the employee’s disability and their conduct.
The Equality and Human Rights Commission (EHRC) Statutory Code gives the following example:
“A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker’s disability, namely her loss of temper. There is a connection between the ‘something’ (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker.”
Employers should therefore tread carefully, and if appropriate seek medical advice from Occupational Health providers.
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23 March 2023
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