Disability-related Misconduct: Can Employers Still Dismiss?

When an employee’s misconduct may be linked to a disability, employers can find themselves in difficult territory. On the one hand, an employer is entitled to expect certain standards of conduct and behaviour. On the other, s15 of the Equality Act 2010 protects employees from discrimination due to something arising from disability.

What is the line between something that is “just misconduct” and something that is “disability related”? It is a point that has arisen in significant tribunal/court decisions, in a recent case reported in the media, and in cases BTO has dealt with.

The BBC case

This summer an employment tribunal reached a decision in a claim by former BBC journalist Sean McGinty.

Mr McGinty had worked for BBC Radio Lancashire for 22 years. He was dismissed after the BBC concluded that a series of posts on X, including posts about transgender issues and Hamas, breached its social media guidelines. Mr McGinty argued that his conduct arose from ADHD and severe anxiety, including impulsivity, lack of filter and fixation on issues about which he felt strongly.

The tribunal rejected his claims, finding that there was insufficient evidence to establish that his ADHD or anxiety caused the breaches of the BBC’s policies. The fact that an employee is disabled does not mean that all conduct is automatically attributable to that disability.

While this is merely an employment tribunal decision, and fact sensitive, the case highlights an important point: disability does not prevent disciplinary action, but employers should consider whether the conduct may have arisen from the employee’s condition before deciding what action to take.

Section 15 Equality Act 2010

The prohibition on direct disability discrimination and the duty to make reasonable adjustments are well understood by employers. More difficult is the protection provided by section 15 of the Equality Act 2010.

In simple terms, discrimination may arise if an employer treats a disabled employee unfavourably because of “something arising in consequence of” the employee’s disability, although the employer may still argue that the treatment is objectively justified.

The statutory wording is broad and tribunals have often interpreted it generously. There does not need to be a direct causal link between the disability itself and the employer’s treatment. But there must be a sufficient link, for example where the disability affects the employee in a particular way, leading to the employee acting, or not acting, in a certain way, and as a result the employer takes action. Examples could include disability-related absence, poor performance, or even, as argued in the BBC case, disability-related misconduct.

Earlier authorities

In Risby v London Borough of Waltham Forest, an employee who used a wheelchair became angry following a dispute about disability access at a training venue, and used offensive racist language. That led to misconduct proceedings and dismissal for gross misconduct. The Employment Appeal Tribunal held that the employee’s conduct could still be said to arise in consequence of his disability, because his anger was related to the venue being inaccessible to him as a disabled person. The disability did not need to be the sole or direct cause of the conduct. Therefore the dismissal was sufficiently linked, though the Respondent would potentially have a good justification argument.

Similarly, in City of York Council v Grosset, a teacher suffering from cystic fibrosis showed an inappropriate film to pupils. Medical evidence, not available to the employer at the time, established that stress caused by his disability significantly impaired his judgement. The Court of Appeal held that the misconduct arose in consequence of the disability. The employer’s justification defence failed as it had contributed to the employee’s stress, had not properly accommodated the disability, and could have imposed a lesser sanction. Although the unfair dismissal claim failed, the discrimination claim succeeded, and significant compensation was awarded.

In Davies v Scottish Courts and Tribunals Service a court officer experiencing severe menopausal symptoms, including heavy bleeding, anaemia, confusion and memory difficulties (held to amount to a disability), was dismissed after an incident involving medication and a water jug in court. The tribunal found that the dismissal arose from disability-related confusion and memory issues, and that dismissal was not proportionate.

These cases demonstrate that employers should not focus solely on the immediate misconduct. The key question is often whether the employee’s disability played a significant role in the events leading to it.

That can arise in a wide range of situations. Symptoms such as fatigue, anxiety, impaired concentration, chronic pain, reduced emotional regulation, side effects from medication or stress-related behavioural changes may all form part of the causal chain.

The limits of section 15

The protection offered by s15 is not unlimited, and the BBC case provides a useful example of where the line may be drawn. The tribunal accepted that the claimant had ADHD and mental health issues. However, it was not persuaded that these conditions had caused the gross misconduct. The tribunal found no evidential basis for concluding that his disabilities caused or explained what it regarded as a sustained pattern of misconduct.

Ultimately the existence of a sufficient connection is a question for evidence and legal argument. Often, parties will rely on expert evidence establishing the existence or absence of a causal link between the disability and the conduct.

Establishing that the conduct arose from disability is not necessarily the end of the story. Section 15 permits an employer to argue that its actions were a proportionate means of achieving a legitimate aim.

The legitimate aim may include:

1. maintaining appropriate standards of conduct and performance
2. protecting service users, customers or colleagues
3. ensuring workplace safety
4. maintaining trust and confidence
5. protecting the organisation’s reputation

The question then becomes whether dismissal, rather than a lesser sanction, was a proportionate response.

Tribunals will often look at factors such as:

1. the seriousness of the misconduct
2. the impact on colleagues, customers or the organisation
3. whether alternatives to dismissal were available
4. whether the employer properly investigated the medical position

Practical lessons for employers

Cases involving disability-related misconduct or poor performance are rarely easy. Before starting disciplinary action, employers should consider whether to investigate the medical position and/or whether reasonable adjustments should be made.

Employers must avoid assumptions, and be guided by that medical inquiry. Not all misconduct by a disabled employee will be disability-related. Conversely, some conduct that appears deliberate may have a significant medical aspect.

If disciplinary action is necessary, consider whether dismissal is genuinely required or whether a lesser sanction would achieve the employer’s objectives with less impact on the disabled person.

Conclusion

The key lesson from the BBC case is that disability does not provide immunity from disciplinary action. However, the authorities show that employment tribunals may still conclude that misconduct is disability-related, putting the burden on the employer to objectively justify the sanction imposed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.