If a Claimant’s disabilities (here dyslexia, Asperger’s, neurodiversity and hearing loss) had no effect on the aggressive behaviours for which he was disciplined, was a tribunal entitled to dismiss detriment claims for something arising from disability under s15 Equality Act?
Yes, held the EAT in McQueen v The General Optical Council.
The Claimant was subjected to disciplinary action after incidents of aggressive behaviour. The tribunal found that the Claimant’s conduct was not because of his disabilities, but from a short temper and resenting being told what to do. The Claimant argued that the tribunal should have considered a dual or multi-factor causation test, whether any disabilities had been a factor in the Claimant’s conduct, meaning disciplinary action was due to something arising because of disability.
The EAT rejected this, the tribunal found that the effects of the disabilities did not play any part in the Claimant’s conduct, so there was no need to consider if the treatment was partly because of disabilities.
The EAT gave guidance at paragraphs 52 and 53 on two ways to structure decisions in section 15 cases, having found the tribunal’s judgment difficult to understand, suggesting four questions to consider:
(i) what are the disabilities;
(ii) what are their effects;
(iii) what unfavourable treatment is alleged in time and proved and;
(iv) was that unfavourable treatment “because of” an effect or effects of the disabilities.
Thanks to Ed McFarlane for preparing this case summary.
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