What should you do when an employee says their misconduct is related to disability?

Does disability excuse bad behaviour at work?

The departure of Greg Wallace from Masterchef has been big news.  The long-time co-host of the BBC show was recently dismissed by his employer, Banijay, after an independent inquiry upheld multiple allegations of inappropriate behaviour against him, the majority relating to use of inappropriate sexual language and humour. However, when the TV presenter took to social media to respond to the sacking, he caused further upset by appearing to suggest that his recent diagnosis of autism contributed to his conduct – claiming that his employer did not investigate his disability or protect him from a “dangerous environment”.  

His comments provoked a strong backlash from autism charities who criticised him for appearing to use his autism as an excuse for his behaviour and raised concerns that his remarks risked stigmatising the autistic community. 

The offending statement has since been withdrawn by Greg Wallace, who has subsequently gone on to publicly apologise for any distress caused by his behaviour, however the case raises an interesting question about the extent to which an employer should take into account the effect of an employee’s disability when dealing with allegations of misconduct.

Disability discrimination and the law

The law protects disabled employees in many ways.   It is unlawful to:

• treat an employee less favourably because of disability (direct discrimination). 
• treat an employee unfavourably because of something arising in consequence of their disability and that treatment cannot be objectively justified (discrimination arising from disability)
• have a practice or policy that disadvantages employees with a shared disability unless that practice or policy can be objectively justified (indirect discrimination)
• subject an employee to harassment related to their disability (disability harassment)
• victimise an employee because they have made or intend to raise a complaint about disability discrimination or are assisting someone who has made such a complaint (victimisation).

There is also a positive duty on employers to make reasonable adjustments for disabled employees where their work, working conditions or environment puts them at a substantial disadvantage. 

When conduct is connected to an employee’s disability

It is not uncommon, in the context of misconduct allegations, for questions to arise as to whether an employee’s disability has contributed to or caused the behaviour in question.  In such situations, it is important that an employer investigate the issue and often this will involve getting medical advice.   

If, having made such enquires, the employee’s disability is believed to have contributed or caused the employee’s misconduct, that does not mean that disciplinary action cannot be taken, but the employer will have to show that any decision it takes can be objectively justified.  

A failure to do so could result in the employee claiming disability discrimination – that is that they have been discriminated because of their disability, or, more commonly, for a reason relating to their disability since it is usually not the employee’s disability itself that is the reason for the unfavourable treatment but the behaviour that is caused by or connected to the disability. 

Unsurprisingly, there have been a few employment law cases on this area. 

In the case of Borg-Neal v Lloyds Banking Group Plc ET/2202667/22,  Mr Borg-Neal, who had dyslexia, was dismissed when, during a race education training session, he used the N-word when giving an example of a word that would be considered offensive.  Unfortunately, he used the full word rather than the abbreviation.  He was dismissed as a result and subsequently brought claims including for discrimination arising from disability.   The Tribunal accepted that Mr Borg Neal was unable properly to express what he is thinking because of his dyslexia and that, on the occasion in question, his dyslexia made it harder to formulate his question about use of the offensive word, which in turn led him to use the word in full.   Consequently, the Tribunal found that Mr Borg Neal had been discriminated against for a reason arising from his disability. 

By contrast, in the case of McQueen v General Optical Council [2023] EAT 36, the employee, Mr McQueen, was unsuccessful in arguing that his inappropriate conduct was related to his disabilities which included dyslexia, hearing loss, neurodiversity and symptoms of Asperger’s Syndrome.   Mr McQueen’s conduct included having two (what was described as) “melt downs” with a senior manager during which he was loud and aggressive – behaviour which he attributed to his disabilities.   The Tribunal, however, found that on the occasions that he became loud and angry, his disabilities played no part in his conduct – rather he behaved that way because he had a short temper, and he resented being told what to do.  

In a case that involved an employee with autism – Kaler v Insights ESC Ltd [2024] EAT 195 – Ms Kaler, who had Autism Spectrum Disorder (ASD) was dismissed from her position of Vice Assistant Principal at a school for sending her employer numerous abusive, threatening and harassing emails over an issue in relation to her pay.   She subsequently brought a claim for discrimination arising from disability, among others. 

Her claim failed in the tribunal as the Tribunal concluded that her conduct – sending messages that were “unprofessional, deeply offensive, insulting, threatening and some of them clearly blackmailing” – was not something arising in consequence of her ASD.  The Tribunal went on to conclude that even if her conduct was something arising in consequence of her ASD, that conduct was so “serious and egregious” that the decision to dismiss her for it was in any event justified.

As for Greg Wallace, his former employer, Banijay, acknowledged his autism diagnosis and said that it was relevant to certain behaviours identified in the report.  It also said it accepted that more could have been done to “identify, manage and communicate patterns of inappropriate behaviour”.   However, it went on to say that given the “volume and consistency” of the substantiated allegations (45 in total) his position on Masterchef had become untenable.  

Points to note

All of these cases serve as a helpful reminder to employers to act with caution when considering disciplinary or other formal action in relation to an employee with a disability.

It is important for employers, before taking disciplinary action, to ask an employee whether there are any issues that may have some bearing on their behaviour.  If an employee does raise an issue, it may be necessary to obtain a medical report to identify if the employee has a disability and/or whether the employee’s health condition is related to their conduct.  As the case examples given show, although an employee may have a condition that impacts on the way they behave, including on their interactions with others, it does not necessarily follow that the employee’s disability is linked to the misconduct in question.  Even if the conduct is related to an employee’s disability, there may be other factors at play, including the nature of and seriousness of the conduct that could justify taking disciplinary action.