Employers may need to reassess disciplinary proceedings when new information about disability emerges

Background

In XYZ v Birmingham City Council, the claimant faced disciplinary action after a workplace incident. He argued that his conduct arose from his PTSD. While the process was ongoing, he told the Council that he had PTSD, anxiety and depression. The disciplinary process continued. When he later raised a grievance, the Council told him to use it as mitigation in the disciplinary process rather than investigate it separately.

The claimant resigned and brought disability and age discrimination claims. The tribunal accepted the Council’s admission of unfair dismissal liability but dismissed the remaining claims, including the discrimination claims.

EAT decision

The Employment Appeal Tribunal (EAT) held that the tribunal had not properly considered whether the Council acquired knowledge of the claimant’s PTSD after his disclosure and before he resigned. It should also have considered his case that continuing the disciplinary process after the disclosure was unfavourable treatment because of something arising from his disability.

The EAT did not decide that the Council had the relevant knowledge or that continuing the process was discriminatory. Those issues, including whether the process could be justified, were remitted to the same tribunal. In considering justification, the tribunal will need to assess the impact on the claimant against the Council’s legitimate aims and consider whether less discriminatory options, such as obtaining occupational health advice or discontinuing the proceedings, were available.

The EAT also found that the tribunal had applied the wrong test to the disability-related constructive dismissal claim. It should have asked whether the claimant resigned in response to unfavourable treatment because of something arising from his disability.

Separately, the EAT held that the tribunal had overlooked evidence and submissions explaining the delay in bringing the age discrimination claims. It remitted the question of whether it would be just and equitable to extend time. The tribunal’s rejection of the disability-related harassment claim and certain age discrimination allegations was not overturned.

Learning points for employers

A disability disclosure does not automatically mean that a disciplinary process must stop. Employers should consider whether the new information relates to the conduct being investigated and whether continuing the process remains appropriate and proportionate. Depending on the circumstances, this may involve seeking occupational health advice, considering adjustments or other options, and recording the reasons for the decision.

Where an employer admits unfair dismissal liability, it should identify clearly which acts are admitted to have breached the implied term of mutual trust and confidence. In this case, uncertainty about the scope of the admission made it harder for the tribunal to assess whether discriminatory acts formed part of the breach.

For more information or advice, please get in touch with Sofia Efstathiou in our Employment team.