The Employment Appeal Tribunal (EAT) decision in the case of McQueen v The General Optical Council gives further guidance on whether an employer can take disciplinary action and /or dismiss an employee who displays aggressive behaviour to other staff members but suffers from mental health issues.
Under the Equality Act 2010 (EA), disability is a ‘protected characteristic’ and thus where an employer unfairly dismisses an employee who has a disability that falls within the meaning of Section 6 of the (EA) 2010, the employee would have an unlimited damages claim if successful on the reliance of the wording under Section 15 of (EA ) states that "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. 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.
Any damages claim, amongst other things, is made up of financial loss arising from the termination, injury to feelings and interest, for example in the case of Mr D Barrow v Kellog Brown & Root (UK) Ltd, the Employment Tribunal awarded Mr Barrow £2,567,831.97 for unfair dismissal and disability discrimination, which was the second largest disability discrimination award ever made by the Employment Tribunal.
What were the facts in the case of McQueen v The General Optical Council 2023?
The employee, McQueen, (M), had various health issues such as dyslexia, Asperger’s, neurodiversity and hearing loss which his employer acknowledged were disabilities within the meaning of Section 6 of the Equality Act 2010 as (M) had been examined at various times from 2015 to 2017 by an occupational health adviser, a psychologist and a psychiatrist.
(M)’s health issues would result in difficulties with his interactions with members of staff in the workplace, such as (M) having a short temper, raising his voice and adopting mannerisms suggestive of aggression with inappropriate speech and tone, culminating in disciplinary action having to be taken by (M)’s employer over such aggressive behaviour. (M) left his employment and proceeded to file a disability discrimination claim before the Employment Tribunal (ET).
What did the Employment Tribunal (ET) decide?
(ET) decided that (M) ‘s meltdown behaviour such as having a short temper and resenting being told what to do, was not because of his disabilities. (M) appealed to (EAT), amongst other things, that the medical evidence drew a clear link between (M)’s disabilities and his conduct and that the (ET) did not consider whether the disability could have been a contributing factor to the (M)’s conduct, without necessarily being the only or even the predominant cause and argued that the disability does not necessarily need to be the sole or even main reason for the "something" falling within section 15 of (EA) 2010 so as to justify disability discrimination.
What did the (EAT) decide?
The (EAT) found the tribunal’s decision "difficult to understand and interpret", as the "decision are not conducive to clarity of thought, expression and reasoning " paragraphs 50 and 51 - see here and stated in paragraph 52 that "It would have been better if the tribunal had structured its decision by asking itself the questions (i) what are the disabilities? (ii) what are their effects? (iii) what unfavourable treatment is alleged in time and proved and (iv) was that unfavourable treatment "because of" an effect or effects of the disabilities".
The (EAT) concluded that once the tribunal, having regard to the medical evidence, had determined that the disabilities did not have any effect on (M's) conduct on the occasions in question, the further question of whether any unfavourable treatment was "because of" that conduct did not arise and the (EAT) felt that the (ET) did reach that conclusion in relation to all the unfavourable treatment complained of, hence (M)’s appeal was not upheld.
What the decision means for employers?
The decision suggests that the four limb test referred to above should be followed by employment tribunals and thus it is prudent for employers to do so likewise backed up by medical evidence, so as to separate aggressive behaviour from the employee's disabilities.
Disability discrimination is a complex area of the law and should you face a similar situation, it is prudent to seek professional HR / legal advice on the matter.
The article is for informational and educational purposes only and should not be relied upon as legal advice. If you require any further assistance, please do not hesitate to contact our free advice line team at 0116 274 9193.
