In Risby v London Borough of Waltham Forest, Risby is a paraplegic. He has a short temper, which is a personality trait and not related to his disability. London Borough of Waltham Forest (LBWF) decided to organise workshops for its managers at a private venue which had wheelchair access and so accessible to Risby. To save money, the chief executive decided that external venues should no longer be used and the venue for the workshop Risby was to attend was changed to the basement at a LBWF owned assembly hall, which had no wheelchair access.

The venue change angered Risby. He shouted at Ms Scott, a junior colleague, saying in a loud voice, which other members of staff could hear, “The Council would not get away with this if they said that no f******g n*****s were allowed to attend”. Ms Scott, who is of mixed race, believed this comment was directed at her and was close to tears. Later the workshop organiser, Ms Burke, telephoned Risby. He was still angry. He told her in the hearing of another employee that he was being treated “like a n****r in the woodpile”. Following a disciplinary hearing Risby was summarily dismissed for using offensive and racist language twice and behaving unacceptably towards managers and work colleagues. 

An employment tribunal found there was no direct linkage between Risby’s physical disability and his behaviour for which he was dismissed and so rejected his claims of discrimination because of something arising in consequence of his disability under S.15 of the Equality Act 2010 and unfair dismissal. Risby appealed arguing that the tribunal had made an error of law as the language of S.15 meant it was not necessary for a claimant’s disability to be the cause of the employer’s action in order for a claim to succeed.

The EAT upheld Risby’s appeal. Case law is very clear that it is not necessary for there to be a direct link between an employee’s disability and his or her conduct for S.15 to be satisfied.  All that had to be established was that the employee’s conduct arose in consequence of his disability, i.e. it was an effective cause his conduct.  If Risby had not been disabled by paraplegia, he would not have been angered by LBWF’s decision to hold the workshop in a venue to which he could not gain access. His misconduct was the product of indignation caused by that decision. His disability was an effective cause of that indignation and so his dismissal arose out of his disability.

The error by the tribunal also impacted on the reasonableness of the dismissal as the tribunal had acknowledged that if the conduct was as a consequence of his disability then some other sanction may have been appropriate. The EAT therefore remitted both the discrimination and the unfair dismissal claims back for a further hearing before the employment tribunal to decide whether under S.15, dismissal was a proportionate way of achieving a legitimate aim and the dismissal itself was reasonable in all the circumstances. 

Although the employee’s frustration maybe understandable, the manner of making his unhappiness known crossed the boundary of acceptable behaviour by any reasonable standard. However, while such conduct may be a consequence of disability, an employer can defend any alleged unfavourable treatment under S.15 by showing that it had a legitimate aim, there was no other sanction available given all the circumstances and the discriminatory impact was outweighed by the benefits to the organisation as a whole.

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