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McQueen v General Optical Council – (EAT case – Disability discrimination)

Facts

The claimant in this case, Mr McQueen, was employed in 2014 as a registration officer by the respondent, a regulator of optometrists and opticians across the UK. He has dyslexia and some symptoms of Asperger’s Syndrome, in addition to left-sided hearing loss. The employer was aware of Mr McQueen’s dyslexia when he was recruited.

In April 2015, a senior colleague raised Mr McQueen’s conduct as an issue, explaining that he challenged instructions that were given to him and that he was rude, disrespectful, inappropriate, and displayed aggressive gestures. Mr McQueen was consequently warned that any further instances of conduct of this nature could result in disciplinary action. In light of this, various occupational health assessments were carried out during the course of his employment which found that Mr McQueen experienced altered speech in situations of stress, anxiety or conflict. These alterations included raising his voice and mannerisms which were described as aggressive, with inappropriate speech and tone.

A second incident took place in April 2016 involving Mr McQueen and the same senior colleague (described by the employer as a “meltdown”). The confrontation between the pair arose due to Mr McQueen’s refusal to delegate some backlog of work to colleagues, which subsequently left the senior colleague in tears. There were further difficulties between Mr McQueen and work colleagues which resulted in him receiving a written warning in January 2017 for not following instructions. Following this, he was disciplined again for providing incorrect information to a candidate for registration; however, the disciplinary meeting which was carried out concluded that the incident was not proved and the evidence was considered weak. Nonetheless, Mr McQueen was not content with the disciplinary outcome and raised a grievance in July 2017. He did not return to work apart from one brief visit and later resigned in 2019.

Mr McQueen brought four claims to the Employment Tribunal (“ET”) between 2018 and 2019, covering a wide range of allegations of discrimination on the grounds of race, sex and disability, in addition to claims for victimisation and harassment.

Decision

Firstly, the employer accepted that Mr McQueen’s neurodiversity symptoms, specifically his dyslexia and Asperger’s Syndrome, amounted to a disability under the Equality Act 2010. His claims for discrimination and harassment failed, as did his claim for discrimination arising from disability, in which he alleged that he suffered unfavourable treatment due to something arising in consequence of his disabilities. The ET concluded that Mr McQueen’s conduct and behavioural issues that resulted in his dismissal did not arise because of his disability, but rather because he “resented being told what to do” and he therefore became “impossible to manage”. His claims of disability discrimination and harassment were therefore dismissed.

Mr McQueen appealed the decision in the Employment Appeal Tribunal (“EAT”). He believed that the ET were acting too strictly in their application of the legal test of causation, which focuses on the link between an employee’s disability and their conduct. He argued that his disability did not necessarily need to be the sole or principal reason for the “something” that arises in consequence of it, instead his disability needed only to have a significant or “more than trivial” influence on the “something”. Whilst the EAT believed that the ET should have structured their decision so it could be more clearly understood, their reasoning was not flawed in respect of law or of principle. The EAT held that Mr McQueen’s conduct, which involved his confrontational manners, occasions where he went into “meltdown”, as well as becoming loud and angry, were not because of his disability. As a result, the question whether any unfavourable treatment alleged and proved had been ‘because of’ something arising in consequence of his disabilities did not arise. The EAT therefore upheld the ET’s decision and dismissed the appeal.

Whilst his claims for discrimination and harassment failed, Mr McQueen succeeded in bringing a claim for victimisation because he had been treated unfavourably for raising the grievance. The employer’s “very long delay” of 18 months in handling the grievance was described as “unusual and unsatisfactory”. The ET considered it to be a detriment because it will have caused Mr McQueen anxiety and “stoked resentment that his complaints about treatment he saw as unfair were disdained”. He was awarded £22,680.00 in compensation that included an uplift of 20% for breaching the ACAS Code on grievances.

Comment

It is important to understand how an employee’s disability affects their performance and their conduct whilst in the workplace. When managing disabled employees, a business should make reasonable adjustments tailored to the employee’s specific circumstances to ensure they do not have obstacles whilst working, and ultimately to reduce liability on the business. As in this case, having a clear understanding of the effect that a disability has on an employee’s ability to work helps an employer differentiate between underperformance and misconduct, and capability issues caused by a disability.

Finally, this case demonstrates the pitfalls when handling a formal complaint raised by an employee, specifically regarding the amount of time in dealing with a grievance and responding to the employee. An employer should take note of the ACAS Code on disciplinary and grievances as failure to follow this guidance can result in a claimant’s compensation being increased by up to 25%. This case is also a useful reminder that an employee can succeed in claiming victimisation where their other claims fail, based on how an employer has conducted its disciplinary and grievance investigations. You should contact Kuits when carrying out a disciplinary procedure or responding to a grievance to ensure that you comply with your legal obligations.

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If you would like to discuss any of the above matters, including how to respond to a formal complaint raised by an employee, please contact one of our Employment experts on 0161 832 3434.