The Employment Appeal Tribunal (EAT) decision in McQueen v the General Optical Council [2023 EAT 36] will bring some comfort to employers trying to manage unacceptable conduct at work. The EAT agreed with the employment tribunal’s decision that Mr McQueen’s conduct when he came into conflict with his colleagues was not ‘something arising in consequence of his disabilities’ for the purpose of a discrimination claim under Section 15 of the Equality Act 2010.
Under section 15(1) of the Equality Act 2010 (EqA 2010), ‘discrimination arising from disability’ occurs where both:
- A treats B unfavourably because of something arising in consequence of B’s disability.
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim (the objective justification defence).
The ‘something arising in consequence’ of B’s disability can be wide and this was the central issue in the McQueen case.
Mr McQueen was employed by the GOC as a registration officer. His various conditions included dyslexia, symptoms of Asperger’s syndrome, hearing loss and neurodiversity. This caused him difficulties in interactions with his colleagues. Events between April 2015 and February 2019, when he brought his second employment tribunal claim, saw Mr McQueen challenging his line manager’s instructions in a disrespectful and aggressive way which left her in tears; having various conflicts with colleagues; being given warnings over his failure to follow management instructions; being asked not to stand up at his desk and speak loudly at his colleagues because this was disruptive; and being disciplined for performance issues. Meanwhile Mr Queen brought protracted grievances over various issues including his line manager’s appraisal and his new job description.
The GOC had commissioned OH reports and accepted that some of Mr McQueen’s behaviours did arise as a consequence of his disabilities. They sought to put reasonable adjustments in place. This included the need for written instructions to be sent to Mr McQueen to back up verbal instructions.
The medical evidence also indicated that when Mr McQueen felt stressed, anxious or believed he was in a conflict situation he would raise his voice and adopt mannerisms which appeared aggressive. Mr McQueen argued that his need not be approached in a seemingly confrontational manner, and the need to stand up at his desk, arose as a consequence of his disabilities.
The employment tribunal had no truck with Mr McQueen’s argument. The EAT agreed with tribunal’s findings that his insistence on standing up at his desk arose out of habit and not as a consequence of his disabilities; his disagreement with instructions which lead to conflict did not arise from his dyslexia, or his Asperger’s, but because he had a short temper and resented being told what to do.
When a short temper is a ‘consequence arising from disability’
As always all cases must be considered on their own particular facts. Employers should not take away from McQueen that outbursts of temper will never been regarded as ‘arising in consequence of a disability’. Consider the EAT decision in Risby v London Borough of Waltham Forest, UKEAT/0318/15.
Mr Risby was a paraplegic wheelchair user. He lost his temper and verbally abused a colleague when he found that his employer had moved a training course to a basement he could not access. A tribunal found that Mr Risby’s short temper was a personality trait not related to his disability and dismissed his claims of unfair dismissal and S15 discrimination arising from disability. The EAT allowed Mr Ribsy’s appeal because it found a sufficient link between his disability, his loss of temper and his employer’s actions towards him. It reasoned that if Mr Risby had not been a paraplegic, he would not have been angered by his employer’s decision to hold a course in the venue he could not access.
Distinguishing what behaviours are personality traits compared with those which do arise as a consequence of a disability, and therefore put employers at risk of s15 claims, is a challenging area of law. Our employment solicitors offer clear and timely tailor-made advice, if you would like speak to one of our team to find out more contact here.