You may be justified in dismissing a misbehaving employee but, before doing so, it is always essential to ask yourself whether their conduct may arise from a disability. An Employment Tribunal (ET) powerfully made that point in upholding a diabetic hotel worker's disability discrimination claim (Eykyn v Bepton Hotels Ltd).
The employee, who suffered from insulin-dependent type 1 diabetes, admitted that his behaviour in the six months he worked at the hotel was sometimes poor. He was dismissed following an incident in which he was rude to a senior manager who subsequently told him that he had lost his job because of his argumentative and unprofessional manner and the friction he caused within his team.
However, following a hearing, the ET found that he had suffered discrimination in consequence of something arising from his disability, contrary to Section 15 of the Equality Act 2010. There was no reason to doubt his description of the effect that his uncontrolled diabetes had on his behaviour and the ET was satisfied on the evidence that there was a link or connection between the two.
The manager was aware of his diabetes, which was agreed to be a disability, yet had carried out no further inquiries or sought to educate himself further as to the potential consequences of the condition. No medical advice was sought and, in dismissing him, the employer failed to follow its own contractual disciplinary procedures. No alternatives to dismissal were considered.
The ET acknowledged that it was entirely legitimate for the employer to require an acceptable level of behaviour, attitude and professionalism on the part of its staff. However, there was no question that it had failed to attempt to achieve that aim in anything like a proportionate manner. The employee's dismissal had a devastating effect on him, seriously affecting his mental health for a period of about three months.
His further claims of harassment and a failure to make reasonable adjustments to cater for his disability were rejected. He was, however, awarded a total of £29,746 in compensation, including £18,000 for injury to his feelings. The award was uplifted by 20 per cent to take account of the employer's near-complete failure to follow the Acas disciplinary code. The ET recommended that the employer review and update its policy with regard to disabled employees, together with its disciplinary and grievance procedures.
Expert employment law advice is vital when incidences of disability discrimination are alleged. Contact Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk on 08081668860 for guidance.
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