In this case
The Employment Appeal Tribunal considered whether in dismissing an employee for conduct that, in part, arose in consequence of her disability, her employer may have committed disability discrimination under Section 15 of the Equality Act 2010. A section 15 claim is established if the discrimination arises from a disability. This occurs where A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Facts of the 'Bodis' case
Ms Bodis worked as a domestic assistant at Compton House Care Home. Between 2018 and 2019, several unusual incidents occurred, such as pictures of the general and deputy manager being defaced so that they had facial hair, paper towels being stuck down the staff toilets, reports being damaged, information being removed from displays and oil from a reed diffuser being poured on the managers desk, keyboard, laptop.
The incidents occurred so frequently that the care home began to record the incidents and following an investigation, it held that whilst there was no direct eyewitness evidence, Ms Bodis' handwriting matched the writing on several derogatory notes. Moreover, she was seen in the manager's office with the lights off shortly before one of the photographs was defaced. It was therefore concluded that she was the perpetrator and she was suspended for gross misconduct on 04 March 2019.
At the time of the investigation, the nursing home was not aware that Ms Bodis was suffering with anxiety and depression whilst carrying out the incidents. It was company policy that employees attending investigation meetings were not informed of the details of the meeting, nor were they entitled to be accompanied. During the grievance process, Ms Bodis did not raise her medical condition or offer any alternative explanation for the events, other than denying that she was the culprit.
At the disciplinary hearing, the panel noted Ms Bodis' clean disciplinary record and length of service, having worked at the care home since 2008. However, they also outlined that Ms Bodis' behaviour was unacceptable, the employment relationship had broken down and the manager and deputy manager were very upset by the incidents. As such, Ms Bodis was summarily dismissed on 30 March 2019.
Ms Bodis brought a claim for unfair dismissal, arguing that the decision to dismiss her amounted to unfair treatment arising from a disability. Whilst the Employment Tribunal accepted that Ms Bodis' disability played a part, particularly in the manner in which she answered questions in the investigation, it was only to a trivial extent and had not affected the decision to dismiss her. The Tribunal held that the hearing and dismissal were a proportionate means of achieving a legitimate aim of upholding disciplinary standards where there had been a break down in relations.
Ms Bodis appealed on the basis that the Employment Tribunal erred in law in not expressly taking into account the failure of the care home to inform her of the matters to be discussed at the investigatory meeting, nor did they allow her to be accompanied. Moreover, she claimed that the manager had some knowledge of her disability in the investigatory meeting, and as such her dismissal fell under Section 15 of the Equality Act.
The Employment Appeal Tribunal (EAT) decided that whilst a minor component of the reason for the treatment could be sufficient to establish liability for discrimination arising from a disability, in this scenario, the Claimant's appeal failed, as the Care Home were justified to take her conduct to a disciplinary hearing and the Employment Tribunal had taken into account all the relevant factors in concluding that the dismissal was fair.
Key takeaway points
The case outlines that even if an employee's disability is a minor contributing factor to the decision to dismiss them, it may amount to a Section 15 Equality Act claim. The results of which may be very costly. Back in December 2022, Marks and Spencer plc were ordered to pay in excess of £50,000 as a result of a Section 15 claim. You can read more about that here.
Whilst employers may be aware of direct discrimination, harassment and victimisation claims, it is far more difficult to identify discrimination claims arising from a disability. As such, employers should ensure that managers are trained and are fully aware of all obligations under the Equality Act 2010.
When dealing with any employees with a disability, employers should consider what reasonable adjustments can be put in place to assist them with their day to day working life and in cases of misconduct, employees should also consider dismissal as a last resort, as the courts will always consider what reasonable adjustments have been made.
If an employee is looking to use their disability as an explanation for their misconduct, employers should consider the following factors:
- How has the employee's medical condition / medication affected them?
- What is the likelihood that their behaviour will be repeated?
- Are there any reasonable adjustments that can be made to reduce the behaviour? and
- Are the sanctions due to be implemented proportionate and are there any other options available?
Employers should also consider consulting a medical professional when consider what reasonable adjustments would be appropriate and given that this area is difficult and potentially extremely costly, employers should always consider taking legal advice at the outset of the issue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.