Dealing with an employee’s misconduct when that employee contends it is linked to a disability can be tricky. The scope of protection afforded under so-called “arising from” claims under section 15 of the Equality Act 2010 (“EA 2010”) has been shown by the courts and tribunals over recent years to be very wide.
This scenario is already a common one but likely to become much more prevalent on the back of soaring mental health issues arising not only generally on the back of the COVID pandemic (e.g. anxiety, depression etc.) but also more specifically with increasing evidence around the impact of long COVID which, in many cases, will meet the definition of disability under the EA 2010.
Some helpful guidance for employers can be found in the recent Employment Appeal Tribunal case of Cummins Ltd v Mr W Mohammed.
The Law: section 15, EA 2010
Section 15 provides as follows:
(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
The Claimant started work with the Respondent in 1987 as a Chief Machinist. The chain of events culminating in his dismissal for gross misconduct in 2017 was as follows:
- 11.07.2016: the Claimant was given a final written warning for aggressive behaviour.
- 17.08.2016: the Claimant went off sick with anxiety and depression.
- 31.08.2016: in an appointment with Occupational Health (OH), the Claimant was recommended to take a break/therapeutic holiday. On the same date, there was a telephone call between the Claimant, a manager and HR, the content of which was disputed.
- 15.09.2016: the Claimant was assessed as fit to work by OH, despite being under a current sick line.
The Company then tried to convene a meeting with the Claimant to discuss matters and was eventually informed by the Claimant’s wife that he was in Pakistan. The Respondent considered that he had no permission for that trip (he was assessed as fit for work) and ultimately summarily dismissed him on the grounds of gross misconduct.
Mr Mohammed’s claims of unfair dismissal and under section 15 EA 2010 were upheld. He was awarded £29,000 including an award of £10,000 for injury to feelings.
Employment Appeal Tribunal Decision
An appeal was upheld on the question of the discrimination claim and whether there had been an unfair dismissal.
The Tribunal had fallen into a substitution mindset rather than correctly asking whether the employer’s decision to dismiss fell within the range of reasonable responses. It had failed to properly consider what relevance the disputed permission to travel to Pakistan and employee’s fitness to return to work played in the decision to dismiss.
In fact, the Tribunal had altogether failed to identify what misconduct the employer had found Mr Mohammed to be guilty of which was a fundamental error. Having first of all identified the misconduct relied upon, the Tribunal should then have asked whether the employer had a genuine belief that the Claimant was guilty of that misconduct and had reasonable grounds for that belief based on a reasonable investigation.
The Tribunal had mistakenly based its decision on permission to travel to Pakistan having been given by the employer (or the employee believing he had such permission) but that was not established in evidence and not the position taken by the employee himself at the internal disciplinary hearing.
In looking at the thought process of the decision-maker (both conscious and unconscious) the EAT agreed with earlier decisions on this issue (see Charlesworth v Dransfields Engineering Services Ltd) in that “there may be circumstances in which a factual matter that arises in consequence of disability is effectively a context for the decision, but not in any way the effective cause of it”.
The case is now being sent back to the Tribunal for a re-hearing by a different Tribunal.
What does this mean?
- Allegations of misconduct need to be framed carefully and with an appropriate level of precision. If the allegations seem not to quite fit as matters progress, it is better to reframe the allegations and re-investigate as necessary.
- Any disciplinary sanction should be clearly explained and match the allegations in play. It sounds common sense but we frequently see a divergence between the allegations and the reasons for dismissal or whatever the disciplinary sanction may be.
- The decision-maker needs to own the decision – it is their evidence that will be tested at Tribunal and any divergence between the actual reason for the decision and the reason given at the time, or the underlying allegations, almost always comes out under cross-examination.
- Getting the above right will always be helpful when seeking to defend both unfair dismissal and section 15 claims. In fact, the EAT in this case said that the most important question in dealing with section 15 claims is why the decision-maker acted as they did and having a clear and consistent paper trail on this point is really important.
- To establish the link, if any, between an employee’s disability and the misconduct in question, up to date medical evidence on that point should be sought. A generic OH template referral is unlikely to produce the answers you want from the OH professional or other appropriate specialist. Time taken to ask the right questions at the point of referral and providing sufficient context, is time very well spent.
- There can be more than one, indeed several, links in the chain between the disability and the treatment complained of but the more links there are the harder it becomes to establish the requisite connection.
- Bear in mind that a dismissal might still be fair but nevertheless give rise to a successful section 15 claim. To rely on the “justification defence” at section 15(1)(b) (see above) in dismissal scenarios, it is helpful to have articulated both what the legitimate aim which the employer is trying to achieve is, and why any lesser sanctions cannot achieve the stated aim, such as a final written warning or other sanction.