In recent weeks the Employment Appeal Tribunals judgement in Thomson v Imperial College Healthcare NHS Trust has been published. The key issue which has been attracting comment is the endorsement of the first tier tribunal’s decision that a dismissal may be unfair because of the choice of the decision maker, even when there is no accusation of bias, and the choice of the decision maker was entirely consistent with the employer’s disciplinary decision.
The decision is an important one to which I may return to in in a later article; however, the case also concerned a complaint of disability discrimination.The decision on this point is not ground-breaking in legal terms but it does I think raise some helpful issues for employee representatives dealing with disciplinary proceedings where disability is alleged to be a factor.
The claimant was a Consultant Neonatologist who was dismissed for bullying colleagues. She was at the time of the misconduct subject to a formal warning for misconduct but was dismissed for gross misconduct so the prior warning had little significance for the case. The claimant was also claimed she was disabled by reason of her dyslexia which the Respondent conceded at a Case Management Discussion. During the proceedings the claimant sought to suggest she was disabled by reason of her dyslexia and depression and following an amendment to the claim the claimant made a complaint that the Respondent had failed to make a reasonable adjustment for the claim.
The claimant alleged that the Respondent operated a “a practice of normally dismissing in the case of conduct found to be gross misconduct.” This was the provision, criterion or practice required by section 20(3) of the Equality Act 2010 that was alleged to place the claimant at a substantial disadvantage. The main contour of the allegation is found in the ET’s determination of this complaint, which is cited in paragraph 14 of the EAT’s determination:
Did the (valid) PCPs put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who were not disabled? We have reminded ourselves of the wording of paragraph 48 of the amended Grounds of Appeal (quoted above). The comparative disadvantage was said to arise from the alleged fact that the Claimant’s disability made her more likely to be found guilty of conduct amounting to or perceived as bullying. That is to say more likely than persons who were not disabled. Essential to the argument is the stated link between dyslexia and/or neurodiversity (the disability or disabilities pleaded) and the behaviour liable to amount, or be perceived as amounting, to bullying. In our judgment, the insurmountable difficulty confronting Mr O’Dair is that the link is simply not made out. Dr Harrison’s evidence in answer to Dr Mitchell’s first question was very clear (see above). He makes no connection between dyslexia or neurodiversity and bullying behaviour or conduct which might be seen as harassment. Nor does Dr Roberts offer any support for Mr O’Dair’s theory. Subtle problems of perception and misreading of verbal cues are a world away from the sort of behaviour of which the Claimant was accused. As the case progressed Mr O’Dair appeared to seek to overcome these difficulties by focusing on the evidence of Professor Harrison pointing to incipient depression. But the obvious answer to that is that we are not dealing with a disability discrimination case based on depression. No such complaint is before us.
Dr Harrison’s answer referred to above was in respect to the question posed which was in “your opinion is it likely that the bullying and harassing behaviour are due to dyslexia?”. Dr Harrison’s answer was “I am unaware that dyslexia per se is considered to be a cause of bullying and harassment. Indeed, I would say that the opposite is more likely to be the case, ie people with dyslexia may be the victims of bullying by others. Dyslexia may be associated with other conditions. This has been termed neurodiversity. Examples of other conditions include dyspraxia, dyscalculia, ADHD and Autism Spectrum Disorder. … As a consequence of having neurodiversity, low self esteem may develop leading to depression and anxiety. People who are increasingly anxious or depressed may behave erratically and may display irritability and short temper and lack of tolerance of others.”
The EAT dispatched with this case quickly (and in my view correctly) as follows (paragraph 24):
So far as depression is concerned, on which Mr O’Dair places considerable reliance for his aggregation argument, on the evidence placed before the Tribunal we see from the later letter of 25 July 2012 from Professor Harrison to Mr Kuku, the BMA representative Senior Employment Advisor acting for the Claimant, the Professor’s view of the Claimant’s anxiety was as follows:
“… Based on my own assessment, I had formed the view that she had developed an adjustment disorder including anxiety and depression. Although I have not had contact with the MedNet psychiatrist, it appears that there is an external opinion that Merran is suffering from severe stress and reactive depression. In my judgement I think this is due to the effect of the investigations that have taken place, the outcome of the first investigation which placed her on a final warning and concerns that more complaints have been made about her. …”
That is a clear opinion expressed that any anxiety and depression observed in the Claimant was caused by the processes which led to her dismissal. In other words the investigations into her conduct and what happened thereafter. They do not, in our judgment, lend support to a suggestion that the Employment Tribunal erred in failing to hold that the Claimant was suffering from depression at the material time, whether or not that was to be relied on as constituting the disability for the purpose of their claim before them standing on its own alongside the dyslexia or as amalgamated with it, as in the Patel case, resulting from dyslexia. On the evidence before the Tribunal, in particular Professor Harrison’s letter of 25th July 2012, on whose previous letter considerable reliance was placed, Professor Harrison was of the view that such anxiety and depression was caused by the inquiry into the complaints against the Claimant and was not present at or before the events which led to the inquiry.
In short, the claimant’s disability, dyslexia, could not be held to have been a made the claimant more prone than she would have been but for her disability to result is misconduct action (and in turn dismissal) proceedings being instituted against her. Therefore, the link between the claimant’s disability and the alleged substantial disadvantage (greater likelihood of being dismissed) was simply not made out. In passing even if the link was made out is would appear to me that, following Griffiths v Secretary of State for Work and Pensions the claimant would still have been unsuccessful since substantial disadvantage could not be established since a non disabled employee would also have been dismissed in such circumstances. That is a fundamentally unfair provision and one can only hope that the appeal against the EAT’s decision in Griffiths is overturned when the Court of Appeal comes to issue its judgement on the appeal (heard in February I understand).
As I have written before there may be cases (and even cases of criminal misconduct) where a finding of deliberate or intentional wrongdoing owing to disability cannot be sustained and, therefore, a finding of gross misconduct is impermissible. These are likely to be rare, however.
Trade union reps are much more likely to encounter situations where a disabled person may be more likely to resort engage in misconduct offences than they would but for their disability. In such cases there are potential arguments of failure to make adjustments, discrimination arising from disability and indirect discrimination.
An example would be precisely the type of case alluded to in the medical evidence in Thomson. A person on the Auspergers Spectrum can sometime have difficulty in interpersonal relationships. This disadvantage, especially in times of heightened stress, can lead to raised voices and comments being made in anger/exasperation. I have seen this type of situation result in disciplinary proceedings.
It is in this context that the Thomson judgement serves as a useful reminder to reps. What seems apparent was the EAT had no difficulty accepting that a normal practice to dismiss was a provision, criterion or practice for the purposes of the duty to make reasonable adjustments under the Equality Act 2010 (and by implication also under section 19 of the Act). And so, where a person’s disability has an effect on their conduct but not to the extent where it gives a complete defense on culpability grounds (as in Burdett) there is still the prospect, even if a non disabled person would be dismissed for the same act for a claim to be made the application of that practice represented a failure to make adjustments and/or indirect discrimination.
Thomson v Imperial College Healthcare NHS Trust  UKEAT 0218_14_3001
Griffiths v Secretary of State for Work and Pensions EAT/0372/13
Burdett v Aviva Employment Services Ltd  UKEAT 0439_13_1411