In the recent case of Morgan v Buckinghamshire Council, the Employment Appeal Tribunal found that the dismissal of an employee disabled with autism, whose conduct had been influenced by her disability, was not unfair and did not constitute discrimination arising from disability.
The Claimant was employed as a Social Worker by the Council within its fostering team. She was dismissed by the Council for giving unauthorised gifts without permission to a child for whom she was responsible. Further, in respect of the same child, she was also found to have included her own thoughts and feelings within her case notes, together with criticisms of the carers’ actions on the basis of their faith.
The Claimant was disabled and suffered from various conditions including, most notably in the context of this case, autism, although she had declined to attend an occupational health review with the Council in respect of this. The Claimant argued that her conduct was the consequence of her disability and therefore, her dismissal was not only unfair but also constituted discrimination arising from her disability. Her appeal against her dismissal was not upheld by the Council. Furthermore, within the written outcome, the Council suggested that the Claimant had masked her autism. The Claimant, therefore, pursued a complaint in the Employment Tribunal.
The Tribunal found that the Claimant was disabled under the Equality Act 2010 by reason of her autism and dyslexia. In principle, it was possible for her to be discriminated against for reasons arising out of her disability, however, in these circumstances, her dismissal was objectively justified. The Tribunal accepted that the Claimant was explicitly aware of the requirement to seek authorisation for the giving of gifts. Furthermore, the Council could not be confident that she would not repeat the same conduct again. The Tribunal did, however, make a finding that the comment regarding the Claimant masking her autism constituted harassment.
The Claimant appealed the Tribunal’s findings, and the Council cross-appealed the finding of harassment.
The Employment Appeal Tribunal dismissed both appeals. In relation to the Claimant’s appeal, it agreed that the Council’s decision to dismiss her had been objectively justified. There had been no failure by the Tribunal to take account of the Claimant’s autism and, indeed, the Tribunal had accepted that her conduct was influenced by her disability. Crucially, however, the Employment Appeal Tribunal found that this did not then mean that the Tribunal was compelled to find that the decision to dismiss could not be justified. In this case, the Council had reasonably concluded that the Claimant had been fully aware of the rules regarding the giving of gifts and consequences for breaching those rules, had crossed professional boundaries, and would likely do so again. As such, dismissal was justified.
In relation to the finding of harassment, the Employment Appeal Tribunal found that, whilst it was a single comment, it was contained within a formal letter and therefore, was capable of constituting harassment.
This case serves as a helpful reminder to employers to be alert to the impact that potential disabilities may have on an employee’s conduct. In light of this, employers should ensure that those factors are taken into account when progressing any disciplinary action and considering the sanctions to be imposed.
If you are faced with a similar situation in your workplace, our solicitors are available to provide the expert legal advice you need in relation to discrimination arising from disability.
Jennifer Al-Janabi is an employment solicitor with over 17 years of experience in employment tribunal litigation, discrimination claims and unfair dismissal. Jennifer also has considerable experience in drafting and advising on settlement agreements. Jennifer is a member of The Employment Lawyers Association. To contact Jennifer, visit the Contact Us page. For media enquiries: firstname.lastname@example.org