The EAT has held in Risby v London Borough of Waltham Forest that there only needs to be a loose causal link between an employee’s conduct and their disability for a discrimination arising from disability claim to be made out.

Mr Risby was a paraplegic and was employed by London Borough of Waltham Forest for 23 years. In 2013, Waltham Forest organised workshops for their managers, including Mr Risby.  Initially, the workshops were to take place at a private venue which had wheelchair access.  However, when Waltham Forest decided to stop using external venues for training in order to save money, the venue for the workshops was changed to the basement of one of Waltham Forest’s buildings, which was inaccessible to Mr Risby.

Mr Risby was very angry and upset about the decision to change the venue to a location which was inaccessible.  He lost his temper and shouted at a junior colleague, bringing her close to tears.  His comments included, “the council would not get away with this if they said that no f***ing n***ers were allowed to attend” and that he was being treated “like a n***er in the woodpile”. Mr Risby was unaware that his colleague was of mixed race and believed his comments were directed at her.  Following a disciplinary investigation, he was summarily dismissed on the grounds of gross misconduct.

Mr Risby brought claims for unfair dismissal and discrimination arising from a disability.  The Employment Tribunal dismissed Mr Risby’s claims on the basis that there was no direct link between his disability and the behaviour for which he was dismissed.  Mr Risby appealed to the EAT.

The EAT allowed Mr Risby’s appeal and remitted the case back to the Employment Tribunal for a rehearing.

The EAT’s view was that if Mr Risby had not been disabled by paraplegia, he would not have been angered by the decision to hold the workshop in an inaccessible venue, so his disability was an effective cause of his conduct.  The fact that Mr Risby was short-tempered (which was not related to his disability) was also a cause of his conduct, however that did not mean that the other cause, which was related to his disability, should be disregarded.

Whilst this decision makes it easier for employees to demonstrate a link between their disability and “something arising in consequence of the disability” it does not mean that it was necessarily wrong for Waltham Forest to dismiss Mr Risby in these circumstances.  Waltham Forest may still be able to successfully defend Mr Risby’s claims by showing that that its decision to dismiss him was a proportionate means of achieving the legitimate aim of upholding its equal opportunities policy i.e. it may still be able to show that the dismissal was justified.  The case will now be re-heard.

Employee who was summarily dismissed for gross misconduct could claim disability discrimination