The EAT has upheld a tribunal’s decision that an employee’s disabilities played no part in his aggressive conduct when he was in conflict with colleagues.
THE FACTS
Mr McQueen is disabled. His health conditions include dyslexia, some symptoms of Asperger’s Syndrome and hearing loss. During his employment by the General Optical Counsel, he was examined by an occupational health adviser, a psychologist and a psychiatrist. The medical evidence showed that when he was in situations of stress, anxiety or conflict, he would raise his voice and adopt mannerisms that suggested aggression, using inappropriate speech or tone. Arising from his disability, there was a need to provide written communications to back up verbal communications and, following OH advice, adjustments to working practices were made to meet this need.
There were several difficult incidents between Mr McQueen and his managers and other colleagues, two of which in particular were later referred to by an employment tribunal as “meltdowns”. During these incidents he was rude, disrespectful and used aggressive and inappropriate body language. He was challenged by managers about his disruptive habit of standing up at his desk and speaking loudly to colleagues. He was also given a written warning for failure to follow management instructions. Mr McQueen raised grievances, he went off work during a protracted grievance process, and ultimately left his employment.
Mr McQueen brought wide ranging claims in the employment tribunal, including a claim that he had suffered unfavourable treatment because of something arising in consequence of a disability. The employment tribunal dismissed his claim, and he appealed to the EAT. Although the EAT commented negatively on the structure and drafting of the tribunal’s judgment, it dismissed his appeal.
Key to the employment tribunal and EAT judgments was the finding of fact that Mr McQueen’s conduct on the specific occasions where he had been in conflict with co-workers had nothing to do with his disabilities. Although his disability could potentially cause him to “melt down”, this had not been the cause of his conduct on the specific occasions he’d had meltdowns: the tribunal found that he had behaved as he did because he had a short temper, resented being told what to do, and had lost his temper. There was no disability related reason for him to stand up at his desk to speak to colleagues (which might have been the case had he stood up so he could, for example, hear better, by using lipreading to assist him), but he did so out of habit.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Non-physical health conditions (including different kinds of neurodiversity) can cause challenges in the workplace, because they can affect an employees’ conduct and performance, sometimes causing conflict.
This case shows that it is not always going to follow that a condition contributes to an employee’s misconduct/poor performance, even when it has the potential to do so. Where the condition has not affected the misconduct or poor performance, an employee will not be able to successfully bring a claim that they have been discriminated against for a reason arising from their disability; as the effect has not arisen from the disability. This may be very difficult to unpick. Employers therefore need to make reasonable adjustments for disabled employees in any disciplinary or poor performance process they adopt, as well as consider whether alternative action/s would be effective and appropriate in light of the health condition and its effects.
