When disciplining a disabled employee, employers need to consider carefully whether they should obtain medical evidence on any possible link between the employee’s actions and their disability.
The Court of Appeal has upheld a tribunal ruling that an employer was liable for discrimination arising from disability where it dismissed a teacher with cystic fibrosis for showing an 18-rated film to younger children, despite the employer having reasonably concluded on the evidence available that there was no connection between the employee’s misconduct and his disability (City of York Council v Grosset). The employee accepted that he had made an error of judgment but contended that this was due to the high levels of stress he was suffering, caused by the effect of increased work demands on his disability. The potential link had been mentioned by the employee, but the medical evidence available to the employer at the time of dismissal did not suggest a causal link. However, medical evidence available by the time of the tribunal hearing clearly established that link.
The Court ruled that the employer’s knowledge of the causal link was not relevant. An employer will be liable if the reason for its actions was something which in fact arose from the disability (and the employer cannot objectively justify the treatment). In this case the tribunal had concluded that dismissal was not objectively justified given that reasonable adjustments would have reduced the stress level and avoided the incident occurring.
Employers will need to consider whether an employee’s disability could be causing the behaviour directly or indirectly – here the behaviour arose due to the stress caused by the disability in conjunction with increased work demands. This type of indirect causal link could potentially be argued by employees with a wide range of disabilities, even if their disability by itself does not impact on behaviour. Employers who identify a possible link will then need to consider carefully whether reasonable adjustments have been or could be made and whether disciplinary action can be objectively justified in the circumstances.
Similar care needs to be taken when issuing a sickness absence warning to a disabled employee. The employer in DL Insurance Services Ltd v O’Connor issued a warning after a disabled employee had had absences well in excess of the usual threshold under the sickness absence policy, and in consequence company sick pay stopped. Almost all of the absence was disability-related and the employee claimed discrimination arising from disability.
The employer argued that its action was justified as a proportionate means of achieving its legitimate aim, which was to ensure adequate attendance levels and improve the individual’s attendance. This choice of aim was fatal to the employer’s case, given that it was unable to explain how issuing a written warning would improve the individual’s attendance in light of the fact that the absences were genuine and disability-related.
The employer might have fared better had its chosen aim been to enable it ultimately to dismiss an employee for prolonged poor attendance. However, for its action to be justified, the employer would have needed first to have sought evidence from occupational health (as required by its policy) and from the individual’s team to demonstrate the impact of the absences.