Discrimination Arising from Disability

Dismissing an employee with a disability can seem risky but is not always unfair, even where the reason for dismissal is impacted by the disability.

The EAT has recently upheld a Tribunal’s findings that an employee’s dismissal was justified in a case where disability potentially impacted the behaviour for which she was dismissed. In Morgan v Buckinghamshire Council, the employee was a Supervising Social Worker. She was disabled with conditions including autism and dyslexia. She gave a child presents without prior authorisation, contrary to the employer’s code of conduct. She also included inappropriate case notes on the child’s file and failed to follow management instructions. The Local Authority Designated Officer said they didn’t need to get involved as the child was not harmed, but said the matter warranted investigation. The employee was disciplined and dismissed because the employer did not trust that she would comply with the code of conduct in future. The dismissing officer did not believe her autism affected her conduct. On appeal, the appeals officer requested an occupational health report to assess the likelihood of future breaches and potential preventative measures. The employee refused to cooperate. The dismissal was upheld.

The employee brought claims for unfair dismissal and discrimination arising from disability. The Tribunal said the dismissal was both fair and justified as a proportionate way of achieving a legitimate aim. They found as fact that the employee knew she needed to get permission to give gifts but did not do so. She should have known from the disciplinary policy that she could have been dismissed for doing so. Although another employee had been given a final written warning for unauthorised gifts, the sustained treatment of the child in question meant that the cases were not truly comparable. Dismissal in this case was reasonable. The Tribunal said that, if the employee were not disabled and had accepted responsibility completely, dismissal may have been outside the range of reasonable responses. Dismissal was a proportionate way of achieving a legitimate business aim for the same reasons, so the discrimination claim failed. The employee appealed.

The EAT upheld the Tribunal’s decision. Due to the employee’s failure to cooperate, the employer had to decide the dismissal appeal without the benefit of potentially helpful medical advice. The Tribunal had correctly weighed up whether retaining the employee with a warning would have achieved the employer’s legitimate aim of ensuring future compliance with the code of conduct. One of the grounds for appeal was that the employee had been penalised for her disability because she had not fully accepted responsibility for her actions, something which she said were due to her autism. The EAT said the Tribunal wasn’t penalising the employee, simply stating how her position affected the options available to the employer going forward (in the absence of medical evidence) and its need to ensure matters were not repeated. It was a fact that the employee had struggled to acknowledge the seriousness of her conduct or that the employer had a valid point to make.

This case shows that disability related conduct can justify dismissal in some cases. Here, the employer needed to ensure future compliance with their code of conduct. The employee’s failure to engage in the occupational health process was key to losing her case. In the absence of any acknowledgement of the issue, and a guarantee it would not happen again, or medical evidence to help with how to manage the issue in future in terms of the employee’s disabilities, the only way the employer could guarantee compliance was by dismissing the employee. They had considered other jobs but concluded that they too would require the same compliance which could not be guaranteed. Employers must always follow a fair process. In disability cases, medical evidence at the point of dismissal is essential.

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