Risby v London Borough of Waltham Forest: gross misconduct or disability discrimination?
The Employment Appeal Tribunal (EAT) recently considered whether a disabled employee’s angry outburst was grounds for gross misconduct and dismissal, or discrimination arising from disability.
Mr Risby is a paraplegic who was employed by the London Borough of Waltham Forest.
Training was organised at an external venue with wheelchair access. Shortly before it was due to take place, the Council decided it couldn’t justify the cost of hiring a venue.
It decided to hold the session in a Council basement which didn’t have wheelchair access.
Mr Risby lost his temper at this decision. He upset colleagues by using foul and racist language in front of a colleague who was mixed race. She believed the comments were aimed at her and made a complaint.
He was suspended and dismissed for using offensive and racist language in the workplace, and acting in an unacceptable manner towards his colleagues.
He appealed against his dismissal on the grounds that summary termination was too severe a sanction, but this was rejected.
He brought a claim of discrimination arising from a disability.
He claimed that the fact he was wheelchair-bound was connected to his disability, and this had led to his outburst about the change of training venue.
His act of complaining had led to his dismissal, so his dismissal was linked to his disability and was discriminatory.
The Employment Tribunal initially rejected the claim, and Mr Risby appealed to the EAT who allowed the appeal.
They have remitted the case back to the Employment Tribunal to rehear the facts and consider whether the decision to dismiss was justifiable as a proportionate means of achieving a legitimate aim.
However, the EAT did provide guidance.
They suggested that, on the face of it, Mr Risby’s treatment could potentially amount to discrimination arising from a disability.
There only needs be a very loose connection between conduct and any disability. If Mr Risby had not been in a wheelchair, he would not have been angered by the Council’s decision, so his misconduct was a product of that decision.
What this means for you
Employers must tread carefully if an employee’s misconduct arises from a situation which could be connected to their disability.
The EAT’s decision sets a low benchmark for an employee to demonstrate a connection between their disability and any misconduct.
So, before taking action against an employee, an employer must always consider whether treatment is a proportionate means of achieving a legitimate aim.
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