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Only a loose causal link required for discrimination arising from disability claim

Fri 03 Jun 2016

In Risby v London Borough of Waltham Forest UKEAT/0318/15, the EAT held that there only needs to be a loose causal link between an employee’s conduct and their disability for a discrimination arising from disability claim to be made out.

In 2013, the London Borough of Waltham Forest (“LBWF”) decided to organise workshops for their managers, including Mr Risby, which were to take place at a private venue.  The private venue had wheelchair access so was accessible to Mr Risby, who is a paraplegic.  However, in June 2013, a decision was made by LBWF’s chief executive that external venues should not be hired going forward for cost-saving reasons.  The venue for the workshop was changed to the basement of one of LBWF’s buildings instead.  The basement did not have wheelchair access and, as such, was inaccessible to Mr Risby.  In light of this, Mr Risby became very upset and angry, lost his temper and shouted at a junior colleague, Ms Scott.  His comments included racist and explicit language.  Mr Risby said that he was unaware that Ms Scott was of mixed race and that she had believed that the comment was directed at her.  He was promptly suspended and, following a disciplinary investigation and hearing, was summarily dismissed for gross misconduct.

Mr Risby appealed the decision but his appeal was not upheld.  As a result, Mr Risby brought claims for unfair dismissal and discrimination arising from disability.

The tribunal found that his short temper was a personality trait unrelated to his disability of paraplegia, therefore there was no direct link between his disability and his behaviour.  The tribunal dismissed Mr Risby’s claims and he appealed to the EAT.

The EAT allowed the appeal, noting that all that is required is that Mr Risby’s conduct arose in consequence of his disability.  If Mr Risby had not been disabled by paraplegia, he would not have been angered by LBWF’s decision to hold the workshop in a venue he could not access.  The fact that Mr Risby’s personality trait of shortness of temper, which did not arise from his disability, was also a cause of his conduct, did not mean that the other cause, which was related to his disability, should be disregarded.  The EAT therefore remitted both the discrimination and the unfair dismissal claims back to the tribunal for rehearing.

This case seems to loosen the causal link between the disability and “something arising in consequence of the disability”.  At the remitted hearing, it will be open to LBWF to defend Mr Risby’s discrimination arising from disability claim on the basis that its actions in dismissing him were a proportionate means of achieving the legitimate aim of upholding its equal opportunities policy.  If so, this should not be taken as a suggestion that it is incorrect to sanction an employee in a situation such as Mr Risby’s.  However, it may be that the tribunal finds that it would have been proportionate for LBWF to issue a final warning rather than dismiss Mr Risby in the circumstances.  As such, employers should always consider whether there is an alternative, proportionate, means of achieving its aim in order to limit its exposure to potential discrimination claims.

For more information on this article please contact the Employment Team.      

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