Employers often face the situation when they have to assess what is a disability and what amounts to actual misconduct in the workplace.
An employee will be protected by the Equality Act 2010 if they are covered as a disabled individual. The Act considers certain individuals to have a deemed disability such cancer or blindness. Others will need a physical or mental impairment which has a long-term adverse effect on their ability to conduct normal day-to-day activities. The condition must last for 12 months or is likely to last for at least 12 months.
The Employment Appeals Tribunal has given guidance on recurring impairments, which show a connection between a disability and misconduct. The guidance directs Employment Tribunal on the significance that should give to informal medical evidence presented by a employee.
In the recent case of Connor v Chief Constable of South Yorkshire Police, the police force dismissed a civilian police service employee after it was discovered he had accessed pornography at work. The employee said that his conduct was due to his disability as he suffered from recurring depression. The police rejected his appeal, and the employee started a claim against his employers for disability discrimination.
The employment had to consider if his disability could relate to and explain his misconduct. The employee argued his GP medical noted referred to him having recurrent depression. His psychologist said his behaviour was linked to high stress levels. The police argued he only suffered depression from date of his suspension, so the depression was not linked to his misconduct. The Employment Tribunal accepted the employer’s argument and dismissed the claim. It decided that the depression did not have a substantial adverse effect on C’s day-to-day activities prior to his suspension so hence it was not a disability. Choosing to watch pornography was not connected to his disability.
The employee appealed the decision to the Employment Appeal Tribunal who upheld the Employment Tribunals decision.
The Employment Appeal Tribunal issued guidance and three important points to consider in disability discrimination claims connected to conduct.
The recurrent impairment has to amount to a long-term disability and the employee must provide medical proof that the impairment has indeed recurred. That the recurrence had resulted in substantial adverse effects on their day-to-day activities. This had to be in relation to both the earlier and current occurrences.
The connection between the disability and alleged misconduct required the Employment Tribunal to make an objective factual finding based on a balance of probabilities that was a direct or indirect connection between the disability and misconduct. Medical reports linking a disability to misconduct must be accepted as evidence such a report is likely to meet the balance of probabilities test and is sufficient to prove the connection.
Employment Tribunal must help with access to justice and therefore must allow informal medical evidence to save costs. Such reports created by medical professionals should be allowed due weight unless there is contrary evidence or the need for specialist medical expert reports.
Employers should now review their policies and procedure carefully to ensure that an employee’s claim of a disability and connection to alleged misconduct is carefully investigated and assessed before a disciplinary decision is decided.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852 028.
