If a Claimant's conduct, arising from a disability, is a minor contributing factor to a decision taken to dismiss the Claimant, can that lead to a claim for disability discrimination? Yes, ruled the Employment Appeal Tribunal (EAT) recently in Bodis v Lindfield Christian Care Home.
Background
The Claimant, Ms. Bodis, suffered from depression and anxiety. Following a number of incidents, which included defacing other staff members' photos and displays being damaged, Lindfield Christian Care Home (LCCH) conducted an investigation, which led to them deciding that Ms. Bodis had been the perpetrator of the incidents. Ms. Bodis was suspended from her duties and she faced allegations of gross misconduct.
At a disciplinary meeting, held in March 2019, Ms. Bodis confirmed that she was fit to continue with the hearing, having twice been advised in writing that LCCH would consider an adjournment of the meeting, if she provided a letter from a doctor stating that she was unfit to attend, due to her depression and anxiety. During the meeting, Ms. Bodis did not offer any alternative explanation to the incidents that had occurred, save for denying that she had been responsible for them.
Further, during the investigation, Ms. Bodis gave short and evasive answers to questions, which were given in this way because of her disability. The approach that Ms Bodis. took to answering questions was confirmed as being part of the reason for progressing the matter to a full disciplinary hearing. Following the conclusion of the disciplinary process, Ms Bodis. was dismissed for gross misconduct, with LCCH stating that the employment relationship had completely broken down. Ms. Bodis brought claims for unfair dismissal and discrimination arising from disability.
The Employment Tribunal (ET) dismissed both of Ms. Bodis' claims, though they accepted that the manner in which Ms. Bodis answered questions in the investigation meeting arose as a consequence of her disability. They also found that the manner in which she answered questions had influenced the decision by LCCH to take the matter to a formal disciplinary. However, the ET ruled that because this had only been a trivial influence, and not an effective cause, the decision made to dismiss Ms. Bodis did not arise from her conduct in the meeting. Ms. Bodis appealed the ET's decision.
Decision
The EAT disagreed with the ET's judgment, ruling that even though Ms. Bodis' manner in answering questions in the investigation meeting only had a small influence on the investigator's decision to recommend disciplinary action, it still amounted to discrimination arising from disability.
The EAT commented that the key question to consider is whether the unfavourable treatment is because of something arising in consequence of disability, but reasoned that there is not a requirement that the treatment be solely or principally because of the disability. It only need be that something is of enough causal significance that the unfavourable treatment in question can be said to be because of it. Therefore, it did not matter that the Claimant's behaviour in the meeting was only a minor part of the investigators decision to proceed to a full disciplinary process – that it factored into their decision at all was enough to amount to disability discrimination.
However, the EAT agreed with the ET that the treatment was a proportionate means of achieving a legitimate aim, being the maintaining of disciplinary standards, and therefore LCCH's actions were justified. Further, because Ms. Bodis did not appeal the finding that this treatment was justified, the EAT ruled that the appeal could not succeed.
Learning Points
While the appeal failed, this case serves as a strong reminder that employers need to be aware that decisions influenced by an employee's disability, in relation to their conduct, could be considered discriminatory, no matter how minor an employer might deem that influence. The amount of influence will not alter whether an act was discriminatory or not, so long as there is an effective cause.
Employers must ensure that they conduct thorough investigation and decision-making processes that take into account all relevant factors, including any influence that the employee's disability may have. It is important to be satisfied that any action taken against the employee will be capable of being objectively justified, in the event of a challenge.
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