DISABILITY DISCRIMINATION
The claimant, a supervising social worker in the respondent’s fostering team, was dismissed for her conduct in giving gifts to a child for whom she was responsible without the authority of her manager, and because of what was considered to be the inappropriate content of a case note that she had written.
Before the employment tribunal the respondent accepted that the claimant was disabled by reference to autism spectrum disorder, dyslexia and other matters. The tribunal found that the claimant was not unfairly dismissed. It also dismissed her claim under section 15 Equality Act 2010 in relation to the dismissal because it found the justification defence in section 15(1)(b) to be made out.
The EAT dismisses the claimant’s appeal against those decisions. The tribunal properly concluded that the respondent reasonably formed the view that she had breached professional boundaries, and that it could not be confident that she would not repeat that conduct if she was not dismissed. This included a proper finding that the respondent reasonably concluded that the claimant knew that she needed prior authority for the proposed gifts, and that a breach was a potentially serious matter for which she could be dismissed. Evidence from the claimant’s witnesses, that gift-giving was common and about another employee who gave an unauthorised gift but was not subjected to disciplinary action, did not mean that the tribunal was bound to conclude that her dismissal was in all the circumstances unfair. The tribunal also properly found that, having regard to its own consideration of these features, dismissal was not disproportionate for the purposes of the section 15(1)(b) defence.
The claimant’s case, internally and before the tribunal, was that the conduct was influenced by her autism. The dismissing officer had not accepted that. The appeal officer had invited the claimant to agree to an OH referral in that regard, which, ultimately, she declined to do. The tribunal had not mistakenly inferred that the appeal officer had regarded the claimant declining to consent to the OH referral as additional conduct. Nor had the tribunal, by its decision, wrongly penalised the claimant for her autism. It had, rather, properly taken into account how it had featured in the case that she had advanced internally and before the tribunal; and that the appeal officer had not had the benefit of the OH report that she would have liked to have had, when coming to her own decision.
Nor had the tribunal erred by giving insufficient attention to the impact of the claimant’s dyslexia, in addition to her autism. Complaints of failure to comply with the duty of reasonable adjustment during employment in relation to dyslexia were no longer live. The section 15 complaint in relation to dismissal focussed on the autism, or, to the extent that dyslexia was said to have also influenced the conduct, fell away in light of the tribunal’s findings of fact about the aspects of the conduct for which she was dismissed, and as to her knowledge of the requirement for prior authority for gift-giving.
In the course of her decision the appeal officer had stated that it was a matter of serious concern that the claimant had chosen to withhold her autism through ‘masking’ throughout much of her employment, potentially putting vulnerable children at risk. The tribunal found that this amounted to harassment by effect (contrary to section 26 of the 2010 Act). The respondent’s cross-appeal against that decision failed. Reading the relevant part of its decision as a whole, the tribunal’s reasons conveyed why it considered that the claimant’s view that this statement violated her dignity was, in all the circumstances, reasonably held. That conclusion could also not be said to be perverse.
Citations:
[2022] EAT 160
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 23 November 2022; Ref: scu.682480
