The Equality Act 2010 protects disabled employees from discrimination arising from their disability. This includes situations where someone is treated unfavourably because of behaviour linked to their condition – not just the condition itself. But that protection isn’t absolute.

Employers are not expected to overlook serious misconduct just because it may be linked to a disability. If the decision to discipline or dismiss can be justified as a proportionate way to achieve a legitimate business aim, it may still be lawful.

This was confirmed in the recent case of Duncan v Fujitsu Services, where the Employment Appeal Tribunal upheld a dismissal even though some of the employee’s behaviour was linked to his disability.

The Claimant, who had ADHD and autism, was found to have sent highly offensive and abusive messages to colleagues via Slack during work hours. He claimed his behaviour arose from his disability, but didn’t fully engage with the employer’s attempts to understand this.

The employer dismissed him for misconduct. The tribunal found the dismissal to be fair and lawful. The employer had legitimate aims: preventing threatening and harassing behaviour and maintaining a safe and respectful working environment. Given the seriousness of the language and the lack of any assurance it wouldn’t happen again, dismissal was considered proportionate.

Key takeaways for HR:

  • Always consider medical evidence and whether behaviour may be linked to disability.
  • Identify and document your legitimate business aim (e.g. protecting staff from harm).
  • Consider whether dismissal is a proportionate response or whether a lesser sanction might achieve the same goal.

This case shows that while disability must be carefully factored in, it doesn’t mean serious misconduct can’t be addressed.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.