Can you discipline a disabled employee for aggressive behaviour?

Was it disability discrimination to discipline a disabled employee for aggressive behaviour?

No, held the Employment Appeal Tribunal in the case of McQueen v General Optical Council 2023, on the basis that the aggressive behaviour was not related to the employee’s disabilities. 

The law

This case concerned a claim of discrimination arising from disability.   The law is contained in section 15 of the Equality Act 2010 which states that discriminating arising from disability occurs where:

• A person (A) treats a disabled person (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 case

Mr McQueen was employed as a registration officer by the General Optical Council (GOC).  His disabilities were dyslexia, Asperger’s Syndrome, neurodiversity, and hearing loss.    His employer was aware of his disabilities and knew they caused him some difficulties in the workplace, particularly in the way he interacted with colleagues. 

During his employment, Mr McQueen was seen, at various times, by occupational health advisers and medical advisers who identified that, in situations of stress, anxiety or conflict, Mr McQueen’s conditions could cause him to raise his voice and adopt mannerisms that suggested aggression.

In April 2015, Mr McQueen had, what was described later by the Tribunal as a “meltdown”.   He challenged an instruction from a senior colleague, Ms Patel, who complained he had been rude and disrespectful to her and used aggressive gestures and body language.  He was warned that any repeat behaviour could lead to disciplinary action.   He was referred after this incident to occupational health and changes were made to his method of working.   

After that, there were further difficulties between Mr McQueen and his work colleagues which resulted in him being given a written warning in January 2017 for failing to follow instructions.  In February 2017, he had another confrontation – or “meltdown” – with Ms Patel which resulted in another referral to occupational health.   

In May 2017 Mr McQueen had an appraisal with Ms Patel in which he became antagonised when she gave him low marks for some of his work.   The following month he was invited to another disciplinary hearing for giving out the wrong information to a candidate.    After this Mr McQueen brought a grievance, claiming that the two disciplinary warnings and the poor appraisal he received constituted unfavourable treatment relating to his disability.  

The grievance process was drawn out and in August 2018 Mr McQueen submitted a claim in the Tribunal against the GO, alleging unfavourable treatment because of “something arising” from his disability.  His claimed that his aggressive behaviour, which had led to the unfavourable treatment, was caused by his disabilities.

The decision

The Employment Tribunal held that the disciplinary action taken against Mr McQueen was not “because of” something arising in consequence of his disabilities.  The Tribunal concluded that the loud and aggressive behaviour which led to the disciplinary action was not related to Mr McQueen’s disabilities.   Instead, the Tribunal found that the reason for Mr McQueen’s behaviour was that he had a short temper and resented being told what to do. 

Mr McQueen appealed to the Employment Appeal Tribunal and argued that the Tribunal had not given appropriate weight to the question of whether or not his disability could have been a contributing factor to this conduct that led to the unfavourable treatment.  It was not necessary, he claimed, for his disability to have been the predominate or only cause of his behaviour, in order for the behaviour to be “something arising in consequence” of his disability. 

The Employment Appeal Tribunal, however, upheld the Tribunal’s decision.   It said that the Tribunal had considered whether the effects of Mr McQueen’s disabilities were a contributing factor in the behaviour that led to Mr McQueen being disciplined.   However, after carefully reviewing the medical evidence, the Tribunal concluded that the effects of Mr McQueen’s disabilities did not play any part at all in the conduct that led to the unfavourable treatment.   This was not, therefore, a case where the Tribunal had not given sufficient weight to the effects of an employee’s disability on their conduct or behaviour.

The Employment Appeal Tribunal therefore found that the Tribunal had not made a mistake in the law. 

Points to note and action to take

The case is a useful reminder of the need for employers to obtain medical advice before taking disciplinary action in relation to an employee’s conduct at work, where there is a concern that an employee’s disability may be a contributing factor.

Where it is identified that the effects of an employee’s disability are having an impact on behaviour at work, an employer must exercise caution before taking disciplinary action, ensuring that any such action can be objectively justified. 

McQueen v General Optical Council 2023 – Employment Appeal Tribunal Case. You can read the full judgement HERE