The Employment Appeal Tribunal (EAT) has upheld the decision of an employment tribunal in McQueen v General Optical Council that an employee's conduct on occasions when he came into conflict with colleagues was not something arising in consequence of his disabilities for the purposes of a discrimination claim under section 15 of the Equality Act 2010.
The claimant was employed by the GOC as a registration officer. He has dyslexia, some symptoms of Asperger's Syndrome, left-sided hearing loss and neurodiversity, which caused him some difficulties with his interactions in the workplace. Medical evidence indicated that he would raise his voice and adopt mannerisms suggestive of aggression, with inappropriate speech and tone where situations of stress, anxiety or conflict arose. After challenging an instruction from a senior colleague in a rude and disrespectful manner he was referred to occupational health and changes were made to his way of working so that he was given emailed instructions if asked to change the way a task was to be done. The claimant was challenged about his habit of standing up at his desk and speaking loudly to colleagues, which his managers asked him to stop doing because it was disruptive
In April 2016 and June 2017 there were incidents between the claimant and various colleagues which led to disciplinary action. There was then a protracted grievance process, following which he brought an employment tribunal claim, claiming that he had been subjected to unfavourable treatment because of something arising in consequence of his disability under section 15. The tribunal did not accept that the claimant needing "not to be approached in a seemingly confrontational manner" or "to stand up and speak" arose from his disabilities. It found that the incidents in which the claimant's disagreement with instructions led to conflict arose because he had a short temper and resented being told what to do. It dismissed his claim.
The claimant appealed to the EAT. He argued, among other things, that the disability does not necessarily need to be the sole or even main reason for the ‘something’ that arises in consequence of it, only a significant or more than trivial influence, and that this test was met. The EAT disagreed holding that, once the tribunal had determined that M's disabilities did not have any effect on his conduct on the occasions in question, the further question whether any unfavourable treatment was "because of" that conduct did not arise. The tribunal was well aware of the medical evidence, summarised it carefully and fairly, and drew from it some effects of the disabilities but rejected others.
Take note: The decision in McQueen shows that there has to be a connection between the "something" which leads to the unfavourable treatment and the disability. The existence of a sufficient connection will often be highly fact specific and medical evidence will be essential to determine whether a connection exists.
It is possible for a loss of temper to have a sufficient connection with an individual's disability (though it wasn't in McQueen) to establish a claim of discrimination arising from disability. The EHRC Code gives the example of a woman who is disciplined for losing her temper at work, but whose behaviour is out of character and is a result of severe pain caused by cancer, of which her employer is aware. Here disciplinary action would be unfavourable treatment because it is because of something which arises in consequence of the woman's disability. There is a connection between the "something" (the loss of temper) that led to the treatment and her disability.
