In McQueen v General Optical Council, the EAT explored an issue that is familiar to a number of employers: the difficult question as to when misbehaviour/poor conduct is claimed to be linked to a disability.
The Claimant had a number of conditions amounting to disabilities (described by the EAT as dyslexia, symptoms of Asperger’s syndrome, neurodiversity and left-sided hearing loss). It was accepted that he was a disabled person within the meaning of the Equality Act 2010.
The appeal issue revolved around two “meltdown” incidents. In the first, the Claimant was said to have responded to an instruction in a way described as “rude, disrespectful and wholly inappropriate, with aggressive gestures and body language that was wholly out of place”. The second incident left his colleague in tears. Further incidents occurred and the Claimant was challenged about his habit of standing up at his desk and speaking loudly to colleagues, which was seen as disruptive. The Claimant raised claims of disability discrimination and complained that his treatment based on these events was “discrimination arising from a disability”.
The Tribunal found that the incidents did not arise from the disabilities but arose because the Claimant had a short temper and resented being told what to do.
The EAT was critical of the Tribunal’s structuring of its decision, but did not overturn the decision. The EAT recommended that Tribunal’s approach these issues in a structured fashion, asking themselves:
- What are the disabilities?
- What are their effects?
- What unfavourable treatment is alleged and proved?
- Was that unfavourable treatment “because of” an effect or effects of the disabilities?
The EAT reminds us that for treatment to be “because of” something arising in consequence of the disability, it does not require the disability to be the main or sole reason for the “something”, but the question is whether the disability plays more than a trivial part in the “something”. In this case, therefore, the issue was not whether his disabilities were the sole or main cause of his behaviour, but whether they played more than a trivial part in his behaviour.
This can be a difficult question to answer in the case of many conditions, including neurodiverse conditions, and will normally require medical evidence to determine the extent, if any, to which the condition contributes to the behaviour in question.
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