In this week’s alert we consider a case involving an employee who had various conditions which amounted to disabilities and the extent to which his behaviour arose from his disabilities and whether he has been treated less favourably as a result, says Joanne Holborn of Baines Wilson LLP.
McQueen v General Optical Council (GOC)
Mr McQueen was employed by GOC as a registration officer from July 2014 until 2019 when he left GOC. It was accepted that Mr McQueen had a number of conditions which caused him difficulties with interacting at work including dyslexia, symptoms of Asperger’s syndrome, left side hearing loss and other conditions that were accepted as disabilities for the purposes of the Equality Act 2010.
Mr McQueen had been assessed by occupational health, psychologists and psychiatrists on various occasions which found in stressful situations, when anxious or in conflict, Mr McQueen would raise his voice and display aggressive mannerisms with inappropriate speech and tone to his colleagues.
In April 2015, Mr McQueen challenged instructions from one of his senior colleagues, Ms Patel. Mr McQueen was rude and disrespectful and used inappropriate hand gestures and body language towards her. Mr McQueen was again referred to occupational health who advised that in the future Mr McQueen should be emailed with instructions if he was to be asked to change how he conducted a task. GOC gave Mr McQueen a recording pen so he could record conversations and check them later.
In April 2016, there was another confrontation between Mr McQueen and Ms Patel, which left Ms Patel in tears. Mr McQueen also had further conflicts with other colleagues including an argument over a new job description, a written warning for failing to follow instructions and a dispute with Ms Patel over his annual appraisal. Mr McQueen would often stand up at his desk and speak loudly towards colleagues and he was asked to stop by his managers as it was disruptive.
In June 2017, Mr McQueen was disciplined for providing incorrect information to an exam candidate. The disciplinary procedure found that the evidence against Mr McQueen was ‘contradictory and weak’. Mr McQueen was not content with the outcome of his disciplinary procedure, so he brought a grievance in relation to the disciplinary and his appraisal. The grievance procedure lasted until 2018.
Mr McQueen later brought a claim that he had been subjected to unfavorable treatment due to something arising in consequence to a disability under s.15 of EQA 2010.
Mr McQueen stated that due to his disability he needed to stand at his desk to listen/speak to colleagues and that he could not be approached by colleagues in a confrontational manner. GOC accepted that McQueen needed to receive written instructions to back up verbal instructions and he required some other physical adjustments in the workplace. However, GOC did not accept McQueen needed to stand and speak loudly to colleagues or that colleagues could not approach him in a ‘seemingly confrontational manner’, or that either of those requirements arose due to his disability.
Decision
The Employment Tribunal (ET) dismissed Mr McQueen’s claims. The ET considered all medical evidence which was presented and held that Mr McQueen’s practice of standing up and shouting at work was habitual, rather than arising from his disability. Further, the incidents between Mr McQueen and his colleagues which resulted in conflict were not a result of his disabilities, but because of his short temper, which was exacerbated by a dislike of being told what to do.
The ET found that GOC had sought medical advice from occupational health and introduced measures and working practices which would reduce the risk of interactions between Mr McQueen and colleagues becoming aggressive.
Mr McQueen appealed to the Employment Appeal Tribunal (EAT) against the ET’s decision. He argued that the disability does not necessarily need to be the sole or main reason for the ‘something’ (i.e., Mr McQueen’s behaviours) arising as a consequence of the disability, simply that it has be more than a trivial influence. He argued that his ‘meltdowns’ arose because of his disabilities and that the disabilities were a contributing factor to his behaviours.
The EAT dismissed Mr McQueen’s appeal, stating there had been no disability discrimination and Mr McQueen’s actions and behaviors were not attributable to his disability but his own personality traits and behaviours.
Comment
Previous case law supports that there need only be a loose connection between a disability and unfavourable treatment for a successful claim to be brought. However, it can be difficult to determine which behaviours arise from a disability, particularly where an employee has multiple conditions. These type of cases require good support from occupational health and are very fact sensitive.
This case also highlights that in certain situations discrimination arising from a disability can be objectively justified. It is easier for an employer to establish a defence to a discrimination arising from disability claim where they have sought medical advice and made reasonable adjustments to address any issues arising from the disability.
Where an employer is dealing with an employee who has difficult personality traits or behaviours which can affect working relationships, the employer should consider whether there are any underlying health conditions which could be causing the difficulties. If so, medical advice should be sought to understand the condition and what if any measures can be taken to minimise any impact in the workplace.
If you have any questions in relation to any of the topics covered in this alert or any other employment law or HR query, please contact our employment team on 01228 552600 or 01524 548494.
