Discrimination Arising From Disability

Claim for Unfair Dismissal Arising From Disability

In the case of Morgan v Buckinghamshire Council, the claimant worked as a supervising social worker in the Council's fostering team. She was dismissed for giving unauthorised gifts to a child for whom she was responsible for without obtaining proper permission from her manager. The disciplinary findings were that the claimant had given the child gifts and a greetings card worth around £40. She was also found to have included in a case note about the child "her own thoughts, views and feelings, rather than an account for the child or a social work analysis" and "criticism of carers' actions on the basis of their faith".

The claimant claimed that her conduct was influenced by her autism. However, she had declined to attend an occupational health appointment in order to explore this further.

Following her dismissal, the claimant brought a number of claims including claims for unfair dismissal and discrimination arising from disability. It was accepted that the claimant was disabled in law, in respect of conditions including autism spectrum disorder and dyslexia.

What Did the Tribunal Decide?

The Tribunal concluded that the Council had acted reasonably in forming the view that the claimant had breached her professional boundaries. It could not be confident that she would not repeat the same conduct if she were to remain in post. The Council was reasonable in its conclusion that the claimant knew she needed to obtain authority before giving the gifts, and that breaching this protocol was a potentially serious matter for which she could be dismissed. Whilst the Tribunal was tentatively prepared to accept on the evidence that the Claimant's conduct was influenced by disability, it found that the Council had not acted unfairly in dismissing her given her conduct and what she knew about the rules around gift giving.

The claimant appealed to the EAT, which has now dismissed her appeal. It upheld the Tribunal's findings. The Tribunal had not, in reaching its decision, wrongly penalised the claimant for her autism. It had taken into account how the claimant's autism featured in her case and also took into consideration the fact that the Council had not had the benefit of the occupational health referral it had asked the claimant to attend. The fact that the Tribunal had been prepared to accept the claimant's conduct was influenced by her disability did not mean it was then compelled to conclude that the decision to dismiss could not be justified.

Consideration of Health Conditions

This decision provides a useful demonstration of the areas for consideration where an employee claims a health condition had influenced their conduct. It is important to take steps to understand their condition, and this is likely to involve seeking medical advice. However, employers are not ultimately prevented from taking proportionate action in cases of misconduct, even if there is a potential link to a health condition.

For further information on unfair dismissal claims, please contact Sharmin Chowdhury in our Employment Law team on 01923 919 373. Alternatively, please complete the form below.