Disability and the line between discrimination and misconduct

Imagine a scenario whereby a disabled employee finds themselves angry and upset because they cannot access something and feel excluded by reason of their disability. For example, a wheelchair user finds that the room their employer has booked for some training is in a building he or she cannot access. Or an employer locates their desk so far from the bathrooms that with their condition they cannot manage. Or their employer arranges a meeting somewhere with no thought about how they will get there. The employee concerned might be reasonably concerned that their needs have not been considered but what if their reaction becomes inappropriate? Can the employer then discipline them for misconduct?

This issue arose recently in a case called Risby. The employee’s outburst involved him making comparisons with race – he was trying to argue that the employer wouldn’t have excluded someone who was a particular race from a training venue and get away with it but in doing so used racially offensive words which then upset a mixed race colleague. He also made racially offensive comments when complaining by telephone about the incident some time later. His employer took him to task for the racially offensive comments which were contrary to it’s equality policies and dismissed him for gross misconduct.

He argued unfair dismissal and disability discrimination. In terms of the disability discrimination he was arguing that his misconduct/outburst was linked to his disability (if he hadn’t been disabled he wouldn’t have been excluded so it wouldn’t have triggered the outburst). The Employment Appeal Tribunal agreed – there is a link between his dismissal and the disability in this way and it is therefore possible to argue that the dismissal is connected to his disability.

However the employer then had to justify the detrimental action they had taken as a proportionate means of achieving a legitimate aim. The case was sent back to the Tribunal to address this question but it is suggested that given the circumstances, perhaps a Final Written Warning may have been more appropriate. You will therefore need to look behind the misconduct you might be dealing with to check whether there is a disability in the background and take that into account when deciding the penalty which should apply.