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The recent case of McQueen v the General Optical Council sheds some light on this tricky question. The Employment Appeal Tribunal explained that in a discrimination ‘arising from’ disability claim, there must be a sufficient causal connection between any unfavourable treatment and the ‘something’ which arises in consequence of the disability.
In this Briefing, we explore how to structure an assessment of whether the unfavourable treatment was ‘because of’ something arising in consequence of an employee’s disability – or ‘because of’ something else, such as just having a bad temper.
There are four main strands of disability discrimination:
Discrimination “arising from disability" occurs where:
The ‘something arising in consequence’ of disability can be wide – it could include, for example, an inability to walk unaided, having to follow a particular diet or struggling to use certain equipment.
Mr McQueen was employed as a registration officer by the General Optical Council.
It was accepted that Mr McQueen has dyslexia, some symptoms of Asperger’s Syndrome, some hearing loss and neurodiversity, which caused him some difficulties with his interactions in the workplace.
Medical evidence indicated that, in situations of stress or anxiety, he would raise his voice and use aggressive mannerisms, with inappropriate speech and tone.
There were two confrontations between Mr McQueen and a senior colleague which led to Mr McQueen going into “meltdown” whereby he was rude, disrespectful, and aggressive, which left a senior colleague in tears on one of the occasions. There were various other examples of incidents in which Mr McQueen caused conflict and was disruptive. These incidents led to warnings, disciplinary measures, and protracted grievance processes.
Mr McQueen claimed that he had been subjected to unfavourable treatment because of something arising in consequence of his disability.
An Employment Tribunal (ET) dismissed Mr McQueen’s claims.
The ET noted his disabilities and made various findings about their extent and effect. But it found that, when Mr McQueen went into "meltdown" or became loud and angry, the disabilities played no part in his conduct. The ET found that he had behaved as he did because he had a short temper and resented being told what to do.
The Employment Appeal Tribunal (EAT) upheld the ET’s decision, notwithstanding that it found it was structured and drafted in an unorthodox manner; there was no error of law or principle in its findings.
The EAT provided guidance on how the ET could better structure its decision by asking itself the following questions:
Alternatively, the ET could have reversed the order of the questions and asked instead:
The causation test in claims for discrimination arising from disability is generally quite loose, but there still must be a connection between the “something” leading to the unfavourable treatment and the disability of the employee.
The examples in this case show the connection will usually be fact-specific and dependent on medical evidence. Mr McQueen may have displayed symptoms characteristic of his disabilities, but it is not conclusive that such behaviour arose in consequence of his disabilities.
Where an employee suffers from several disabilities, all with varying symptoms, it may be difficult to predict whether a particular kind of behaviour is something which arises in consequence of one or more of the disabilities. By applying the helpful structured list of questions set out by the EAT’s ruling, it becomes easier to assess whether a causal connection does in fact exist.
Although, of course, employers should always be thorough and diligent when applying a disciplinary process, this case highlights the extra considerations to bear in mind where an employee has a disability. But following the structure set out by the EAT above should help employers to understand when treatment may fall within the restrictions on discrimination arising from disability.
And remember that even if treatment is because of something arising from a disability, it could still be lawful if it is justified.
Read the McQueen judgment here.
Contributors: Catherine Roylance, Sarah Maddock and Calum Ross
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28 March 2023