In the case of Ms M Morgan v Buckinghamshire Council, Ms Morgan was a supervising social worker who worked in the Council’s fostering team. She was dismissed on the grounds of her conduct for giving unauthorised gifts to a child for whom she had responsibility and for the inappropriate content of a case note she had written.
Ms Morgan was recognised as disabled by reference to her autism spectrum disorder, dyslexia and other issues. She pursued claims for unfair dismissal and discrimination arising from her disabilities. The Employment Tribunal (ET) found that Ms Morgan was not unfairly dismissed and also dismissed her discrimination claim because it found that the Council could justify its actions on the basis they were a proportionate means of achieving a legitimate aim. Ms Morgan appealed to the Employment Appeal Tribunal (EAT).
The EAT dismissed Ms Morgan’s appeal against the ET’s decision and found that the ET had correctly and properly concluded that the Council was reasonable in forming the view that she had breached professional boundaries. It could not therefore be confident that she would not repeat the conduct if she was not dismissed. The ET had found that the Council had reached the reasonable conclusion that Ms Morgan was aware that she needed prior authority to give gifts to a child in her care and that a breach of this policy was a potentially serious issue that could lead to dismissal. The fact that other colleagues had breached the policy did not render the dismissal unfair.
Ms Morgan had stated that her conduct was influenced by her autism but the ET found (and was upheld by the EAT) that irrespective, the decision to dismiss was justifiable and proportionate given the safeguarding issues at stake.
Separately, however, Ms Morgan succeeded in a claim for disability-related harassment. In the letter explaining the outcome of her appeal against dismissal, the appeal officer had stated “it is also of great concern that you chose to withhold your autism through ‘masking’ throughout much of your employment potentially putting at risk the vulnerable children with which you were working.”
The tribunal accepted that Ms Morgan reasonably took this as a suggestion that she had been deceitful, when she had in fact simply learned behaviours which led to her masking her autism, and that she reasonably felt her dignity to have been violated.
Pointing out that this was essentially a factual assessment for the tribunal, the EAT dismissed the employer’s appeal against this unlawful harassment finding. Although it was a one-off comment, this did not mean it could not amount to harassment, especially as this was a considered observation in a formal letter rather than an unscripted, heat-of-the-moment remark.
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