Employment law: Disability discrimination at work – McQueen v General Optical Council

Discrimination against employees with disabilities is unlawful under the Equality Act 2010. A recent case, McQueen v General Optical Council, highlights the importance for small business owners to understand the link between an employee’s disability and their behaviour, and how it can impact discrimination claims in employment law.

The background

In this case, the claimant had dyslexia, Asperger’s syndrome, hearing loss, and neurodiversity. He had a history of raising his voice and displaying aggressive body language in stressful situations. After two difficult interactions with a senior colleague, which resulted in disciplinary action and a formal warning, the claimant raised a grievance and submitted an ET claim, alleging that he had been subjected to unfavourable treatment because of something arising in consequence of his disability.

What did the tribunal say?

The Employment Tribunal (ET) acknowledged that the claimant was disabled and required workplace adjustments, but found that his behaviour did not arise as a consequence of his disability. The Employment Appeal Tribunal (EAT) upheld the ET’s decision, stating that there must be a clear link between the ‘something’ leading to the unfavourable treatment and the disability.

I have a small business, how do I avoid disability discrimination claims?

To avoid potential discrimination claims, small business owners should obtain appropriate medical advice to understand an employee’s disability and how it may affect their behaviour. They should also consider any necessary adjustments to working practices to support their colleagues. It is important to note that the connection between the ‘something’ and the disability will usually be fact-specific and dependent on medical evidence.

Employers can use the guidance provided by the EAT when determining whether treatment may fall foul of the rules on discrimination arising from disability:

  1. What are the disabilities?
  2. What are their effects?
  3. What unfavourable treatment is alleged and proved?
  4. Was that unfavourable treatment ‘because of’ an effect or effects of the disabilities?

Alternatively, employers can look at the matter in reverse and ask:

  1. What unfavourable treatment is alleged and proved?
  2. What was the reason for that unfavourable treatment?
  3. What were the effects of the disabilities?
  4. Was the reason for the unfavourable treatment an effect or effects of the disabilities?

Small business owners must understand the link between an employee’s disability and their behaviour to avoid potential discrimination claims and be compliant with employment law. Obtaining appropriate medical advice from an Occupational Health professional and considering necessary adjustments to working practices can help alleviate challenging behaviour, prevent discrimination, and provide evidence and a defence in case of an ET claim.

I don’t know where to start, where can I get advice?

Rebox HR would be happy to help you be complaint with employment law

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