The recent decision of the Employment Appeal Tribunal in McQueen -v- General Optical Council [2023] EAT36, considered whether an employee’s inappropriate conduct in the workplace was something arising in consequence of his disabilities for the purposes of a discrimination arising from disability claim under the Equality Act 2010.
In that case, Mr McQueen was employed by the General Optical Council (‘the GOC’) as a registration officer. He has dyslexia, symptoms of Asperger’s syndrome, neurodiversity and left sided hearing loss. He was examined at various times throughout his employment by an occupational health advisor, a psychologist and a psychiatrist who suggested that in stressful situations, he would raise his voice and display aggressive mannerisms.
Mr McQueen became involved in difficult interactions with his colleagues. The first incident occurred when he challenged an instruction from a more senior colleague Ms Patel who complained that his response was rude and wholly inappropriate, with aggressive gestures and body language. The incident led to a referral to occupational health and consequent changes to his method of working, including being given emailed instructions and a “recording pen” to record conversations, so he could check them afterwards. A further incident took place which left Ms Patel in tears as well as further difficulties between Mr McQueen and work colleagues.
Mr McQueen was given a written warning due to a conflict that occurred over a new job description, and he was disciplined again, for giving a candidate for registration wrong information about whether it was possible to resit a qualifying examination if she failed. Mr McQueen subsequently raised a grievance and issued claims in the Employment Tribunal, including that he had been subjected to unfavourable treatment because of something arising in consequence of disability under section 15 of the Equality Act 2010 (‘EqA 2010’).
The GOC accepted that he suffered from disabilities within the meaning of the EqA 2010. It also accepted that Mr McQueen had, arising from his disability, a need for written instructions to be provided to back up verbal communications; and that he required some physical adjustments to the workplace. The GOC’s case was that whilst some of the adjustments were required, others were not. Some of the contested issues were whether there was a need, arising from the disability, not to approach Mr McQueen in a seemingly confrontational manner; and whether there was a need for him to stand when speaking to colleagues.
In considering Mr McQueen’s claim, the tribunal had to decide whether his conduct at work arose from disability.
Under section 15 of the EqA 2010 “discrimination arising from disability” occurs where both:
- A treats B unfavourably because of something arising in consequence of B’s disability.
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The tribunal dismissed the claim determining that his aggressive conduct and short temper was not something arising in consequence of his disabilities for the purposes of a section 15 EqA 2010 claim.
The tribunal found that Mr McQueen’s disabilities played no part in his conduct during his ‘meltdowns’ and aggressive behaviour at work. In considering the medical evidence before it, the tribunal found that his insistence on standing up to speak arose out of habit and not as a consequence of his disabilities. It also found that, in relation to confrontations with colleagues about following instructions, these did not arise from his disabilities but because he had a short temper and resented being told what to do.
Mr McQueen appealed to the EAT. He submitted that the tribunal adopted too strict a test of causation when considering the effects of his disabilities. He argued that the disability does not need to be the sole or even the main reason for the ‘something’ that arises in consequence of it. Whilst the EAT found that the tribunal’s decision had been drafted in an unorthodox manner, it was not flawed by any error of law or principle. It accepted that the tribunal had carefully considered the medical evidence, his disabilities and made appropriate findings about their extent and effect.
Comment
Whilst previous case law has established that the causation test for discrimination arising from disability claims must not be applied too strictly, this case demonstrates that there must be a link between the ‘something’ leading to the unfavourable treatment and the disability. This can, however, be difficult to determine in situations where an employee suffers from several different disabilities.
It is important, therefore, that employers obtain appropriate medical advice and consider any necessary adjustments to working practices to support colleagues, alleviate the risks of challenging behaviour and potential claims for disability discrimination when such conduct is addressed.
For further information, please contact:
Orla French, Hill Dickinson
orla.french@hilldickinson.com
