The Equality Act states that it is discrimination to treat a worker unfavourably “because of something arising in consequence of” their disability. In McQueen v General Optical Council, the Employment Appeal Tribunal (EAT) held that as the claimant’s aggressive behaviour was not something which arose from his disability, his claim of discrimination could not succeed.
Basic facts
Mr McQueen, who has dyslexia, Asperger’s Syndrome, neurodiversity and left-sided hearing loss, worked as a registration officer for the council from 2014 until his resignation in 2019. As a result of his disabilities, he had a tendency to raise his voice and adopt mannerisms suggestive of aggression, with inappropriate speech and tone in situations of stress, anxiety or conflict. He also had a habit of standing up when speaking to work colleagues which led to difficult interactions.
In April 2015, Mr McQueen challenged an instruction from a senior colleague in an inappropriate and aggressive manner. As a result, he was referred to occupational health and changes were made to the way he worked. In particular, the council agreed that when he was asked to change how a task was done, the instruction would be emailed to him rather than given to him in person. Following further conflicts with work colleagues, Mr McQueen was given a written warning in January 2017 for failing to follow instructions and, in June 2017, was subject to disciplinary proceedings which were subsequently not upheld. He then lodged a grievance in relation to the disciplinary proceedings and other matters.
He brought tribunal proceedings in August 2018 and February 2019 alleging (among other things) that he had been discriminated against “because of something arising in consequence of” his disability under section 15 of the Equality Act. For its part, the council argued that, although it accepted that Mr McQueen required written instructions to back up verbal communications and some physical adjustments to the workplace which it had made, his general confrontational manner and his habit of standing up to speak did not arise from his disabilities.
Tribunal decision
Having regard to the medical evidence and Mr McQueen’s own assessment of his disabilities, the tribunal found that the conflicts were not caused by dyslexia, Asperger's or neuro diversity, but rather because he had a short temper and resented being told what to do. It also found that he stood up to speak “because that is his habit, not because it is something arising from disability”.
Mr McQueen appealed on the basis that his disability did not need to be the sole or even the main reason for the “something” that arose in consequence of it, but rather it only had to have a significant or more than trivial influence on it.
EAT decision
Dismissing the appeal, the EAT considered the approach taken by the tribunal to be unorthodox and set out a structured approach that tribunals should adopt in a claim for discrimination arising from disability. Specifically, it said that tribunals should address the following questions:
- What are the disabilities?
- What effects do they have?
- What unfavourable treatment is alleged in time and proven?
- Is that unfavourable treatment “because of” the effect of the disabilities?
Although the EAT was critical of the way in which this tribunal had approached Mr McQueen’s claims, it upheld the decision on the basis that the tribunal had found, as a fact, that the effects of his disabilities did not play any part in the conduct that led to the unfavourable treatment of which he had complained.
Once the tribunal had made that decision, the EAT held that the further question about whether any unfavourable treatment was “because of” that conduct did not arise.
Comment
This case is a reminder that while there need only be a loose connection between the disability and the consequence of that disability, each case will depend on its own facts. In this case, the tribunal rejected Mr McQueen’s own assessment that his disabilities caused his loud and aggressive behaviour in favour of its own assessment.