In the case of Risby v London Borough of Waltham Forest, the Employment Appeal Tribunal held that an employee’s dismissal for misconduct could constitute discrimination arising from his disability in circumstances where he committed the misconduct after losing his temper at his employer’s decision to move a course to a venue which was not accessible to wheelchair users. The finding in this case suggests that the causal link required between an employee’s disability and the alleged discrimination which is argued to arise from it can be a very loose one.
Mr Risby worked for the London Borough of Waltham Forest local authority (the Council) as a deputy risk and insurance manager. He was disabled and used a wheelchair, having been paraplegic since his youth. He also had a short temper, but this was not related to his disability.
The Council organised workshops for its managers and, initially, these took place at an external venue with wheelchair access. However, to reduce costs, the Council took the decision in June 2013 to hold the workshops in the basement of one of its buildings. The new venue did not have wheelchair access.
Mr Risby was informed about the new venue in an email from his division’s director, Mr Turnbull. He became angry and shouted at Mr Turnbull’s assistant, Ms Scott, after suggestions from the workshop organiser and his line manager that he attend a later workshop at an alternative venue. Ms Scott became upset and a manager intervened. Mr Risby complained loudly to the manager that “The Council would not get away with this if they said that no f****ng n****rs were allowed to attend”. Ms Scott, who was mixed race, believed that this comment was directed at her. Mr Risby also later said to the workshop organiser that he was being treated “like a n****r in the woodpile”. Later that day, he was suspended by Mr Turnbull.
A disciplinary investigation was carried out with the recommendation that Mr Risby be dismissed. At the disciplinary hearing, the Council found that Mr Risby had used offensive and racist language twice and behaved unacceptably towards managers and work colleagues, as well as behaving in a harassing manner towards Ms Scott. This was contrary to the Council’s equal opportunities policy. He was summarily dismissed. Mr Risby’s subsequent appeal against his dismissal was dismissed.
In November 2013, Mr Risby brought claims in the Employment Tribunal (the Tribunal) against the Council for unfair dismissal and discrimination arising from a disability.
The Tribunal rejected the claims on the basis that, as Mr Risby’s conduct could not be explained in some way by a mental impairment qualifying as a disability, there could be no discrimination claim. There was no “direct linkage” between Mr Risby’s physical disability and the misconduct which led to his dismissal.
Mr Risby appealed to the Employment Appeal Tribunal (EAT).
The EAT disagreed with the Tribunal’s view that “direct linkage” between Mr Risby’s disability and his conduct was necessary. Instead, it said that it was only necessary to establish that Mr Risby’s disability was an effective cause of his conduct, even if there was more than one cause. The EAT took the view that if Mr Risby had not been disabled, he would not have been angered by the Council’s decision to hold the workshop in a venue to which he could not gain access and his misconduct was a product of the indignation caused by that decision. His disability was an effective cause of that indignation and therefore of his conduct. His personality trait of shortness of temper, which did not arise from his disability, was also an effective cause.
The EAT held that, as the discrimination had arisen from Mr Risby’s disability, the Tribunal should have gone on to answer the question as to whether the Council’s unfavourable treatment (Mr Risby’s dismissal) was a proportionate means of achieving a legitimate aim, such as ensuring and promoting its equal opportunities policy.
It also found that the Tribunal’s assessment regarding the reasonableness of the decision to dismiss Mr Risby, rather than to apply a lesser disciplinary sanction, such as a final written warning, might have differed had it correctly applied the law in relation to the alleged discrimination arising from disability.
The EAT therefore remitted Mr Risby’s discrimination and unfair dismissal claims back to the Tribunal.
The European and Human Rights Commission Employment Statutory Code of Practice provides an example of discrimination arising from a disability where an employee is disciplined for losing her temper at work in circumstances where her behaviour is as a result of severe pain caused by cancer, of which her employer is aware. In that example, there is a connection between her disability and the conduct that led to her disciplinary sanction. However, the case of Mr Risby takes this one step further because his short temper was not directly related to his disability. Rather his loss of temper arose in consequence of the Council’s decision to use a non-wheelchair friendly venue, which was an issue for him because of his disability. This EAT decision therefore seems to suggest that the causal link required between an employee’s disability and the alleged discrimination which is argued to arise from it can be even looser than the guidance suggests.
At the remitted hearing, the Council will have to show that Mr Risby’s dismissal was objectively justified in the circumstances. However, to do so it must show that the dismissal was a proportionate means of achieving its legitimate aim (upholding its equal opportunities policy) and the Tribunal could find that it would have been proportionate to issue a lesser sanction than dismissal.