Dismissing employee with protected characteristic
Mr X carries a number of medical conditions, some of which would qualify as ‘disabilities’, a protected characteristic under the Equality Act. If a person is judged to have a disability, an employer is duty bound to make reasonable adjustments to accommodate that person, and not to subject them to any detriment, such as dismissing them for issues arising from their condition.
Mr X’s conditions included Aspergers and partial deafness, and when he was experiencing a stressful situation with a colleague, which was not uncommon, he would start to raise his voice and transmit other signals that could be interpreted as aggression.
Mr X was warned about his behaviour, as a result of which he raised grievances. A further incident involving his manager was judged the final straw and he was dismissed. He brought a tribunal claim on the grounds that his ‘meltdowns’ at work were attributable to his protected characteristics and that, had appropriate consideration been given and allowances made (a potentially reasonable adjustment), he should have received a less severe sanction.
When he lost his disability discrimination claim at the employment tribunal, he appealed to the Employment Appeal Tribunal, but unfortunately for Mr X the EAT found no fault with the original tribunal’s ruling. The tribunals concluded that Mr X’s behaviour was not ‘as a consequence of his disabilities’, but rather because he had a short fuse, and resented being told what to do.
The role of the EAT is not to rehear a case, but to look at any potential errors in law or process. Helpfully for employers the EAT set out the reasons why it felt that the original decision was sound.
In particular, the tribunal had fully considered Mr X’s disabilities, what they were, and how they would normally manifest in Mr X’s behaviour. They then looked at the meltdowns in question, and concluded that these did not follow the normal manifestations, and thus the specific meltdowns that led to him being fired, they concluded, could not reasonably be attributed to his protected characteristics.
What can employers learn from this case?
Although the learnings here were derived from the first tier employment tribunal, they are equally applicable to employers. It’s not an uncommon scenario – employee has meltdown, employer starts dismissal proceedings, employee claims a protected characteristic was responsible. So, what did the tribunal do right in this case?
Consider the protected characteristic carefully
It’s important to be open about the PC claimed by the employee. What is it? How does it normally manifest itself? Is it normal for this PC to cause the behaviour in question for this employee? This analysis, and the conclusion, should be recorded in writing, and this was the main strength supporting the tribunal’s decision, and the main learning point for employers in general.
If there is no apparent link
If it’s reasonable to conclude that the PC is not linked to the behaviour, the disciplinary process may continue, making it clear to the employee that consideration has been given to the possibility that the PC was the cause, but that this has been discounted, and why. In this case the behaviour itself becomes the focus of the proceedings, and the PC can be put aside.
Always allow an appeal.
Apart from being a requirement of the ACAS code of practice, an appeal is the last opportunity for the employee to make any representations about their PC’s involvement in the incident – any new information should be considered if it is relevant.
If there is a link between the behaviour and the protected characteristic
If the PC has previously given rise to similar behaviour, care should be taken to ensure that the employee’s PC and any potential mitigations or adjustments are considered. If reasonable adjustments would not fix the problem, the employer should consider whether, on balance, it is reasonable to expect others to accommodate the behaviour, or what other steps might be taken to mitigate its impact.
If the burden on other employees isn’t reasonable, and other reasonable adjustments aren’t available (or wouldn’t adequately address the problem), dismissal would be the last resort, though not without advice, and not without (normally) following the disciplinary procedure. Dismissal should only be contemplated if the incident is serious enough to warrant gross misconduct, or if the employee is already under a live final warning for similar offences.
Investigating employment incidents
Employee meltdowns of this nature should normally be dealt with as potential misconduct, and should be investigated thoroughly. Investigating managers should take statements from those involved in the alleged incident, and from witnesses. Additional information may be gleaned from CCTV etc. It takes experience to conduct a decent investigation, and if you don’t have that, or the time to do it, you might ask an outside HR organisation like myHRdept to do this for you. A poor investigation is the most common reason for employers losing otherwise winnable cases.
HR Support from myHRdept
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