REWARD INSIGHT
Causal link, reasonable adjustment, and jurisdiction
Nicola Mullineux, senior employment specialist for Peninsula, reviews decisions in three cases
Risby v London Borough of Waltham Forest The Employment Appeal Tribunal (EAT) has examined whether there needs to be a direct causal connection between disability and conduct which leads to dismissal in order to be protected by discrimination laws. The claimant was employed by the local authority as a deputy risk and insurance manager. He was seriously disabled, a paraplegic, and had a short temper which was not connected to his disability. In 2013, the local authority decided to organise workshops for their managers. Initially, these were due to be held at a wheelchair accessible external venue but, due to costs, it was decided to move the workshops internally to the basement of their assembly hall. An invite was sent to the managers, including the claimant, on 18 June confirming the basement location. That evening the claimant passed the hall to confirm his suspicions it was not accessible and worked himself in to an angry state overnight. On 19 June, the claimant spoke to his divisional director’s personal assistant three times about the
arrangements for the workshops. On the third occasion he was very angry about suggestions to attend a later workshop and shouted at the personal assistant. During an altercation with a manager, the claimant loudly used a highly offensive racist term which upset the personal assistant. In a later call with the workshop organiser, the claimant again used the same racist term in full hearing of another employee. The claimant was suspended. At the August disciplinary hearing, the claimant’s stance was that he was trying to make a point. The claimant was summarily dismissed due to using offensive, racist language, behaving unacceptably to managers, colleagues and behaving in a harassing manner during the disciplinary. The claimant appealed against the severity of the decision. The appeal failed because the claimant knew his conduct would not be tolerated and there was a risk of repetition. The claimant brought claims of unfair dismissal and disability discrimination. At the Employment Tribunal (ET) two issues were identified: whether the claimant’s dismissal was unfavourable
treatment because of something arising from his disability and, if so, whether dismissal was a proportionate means of achieving the legitimate aim of ensuring and promoting adherence to the equal opportunities policy. The ET found that there was no logical connection between the claimant’s behaviour on 19 June and his paraplegia. As the misconduct could not be explained by reason of disability there was no disability discrimination. The claimant appealed. The EAT judged that there does not need to be a direct causal link between the disability and the conduct, only a loose link. The EAT reasoned that if the claimant had not been disabled he would not have got angry at the inaccessibility of the workshop. This meant the disability was an effective cause of his misconduct but, as the ET had not considered whether dismissal was justified, the case was sent back to tribunal. G4S Cash Solutions (UK) Ltd v Powell This case concerned whether a requirement to protect pay at a higher rate was a reasonable adjustment under section 20 of the Equality Act 2010. From May 1997, the claimant was employed in various roles with the company including a driver, a vault officer, a first line maintenance (FLM)
...does not need to be a direct causal link between the disability and the conduct, only a loose link
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| Professional in Payroll, Pensions and Reward | November 2016 | Issue 25
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