Unusual occurrences, nervous laughter, and disability discrimination

It’s Friday afternoon, and the sun is beating down on the streets of the town; your boss has let your team go early, and you’re in a beer garden chatting about what you’re going to get up to that weekend. Your workmate hands you a drink, and you ask about her plans; she laughs nervously and confesses that she wants to binge-watch Real Housewives of New York. She gives several briefer answers and laughs. The conversation moves on. The weekend comes and goes.

On Monday morning, your workmate is absent with depression and anxiety. 

How much are you meant to know about a person by the way they present? How much can you infer from a nervous laugh? Or a brief answer to a question?  These questions and more were recently considered by the Employment Appeal Tribunal (EAT) in London.

Background

The Claimant was a prime suspect in several strange, disruptive occurrences in the care home where she worked.  The case report gives strong Agatha Christie vibes by way of Grange Hill: 

• “paper towels… stuck down staff lavatories”
• moustaches drawn onto the photos of female members of staff
• reed diffusers being emptied over desks
• the boiler being turned off in the middle of January 

One of the trustees was appointed to investigate, and he interviewed the Claimant. She ‘smiled’, gave ‘brief answers’ and laughed inappropriately when questioned. He was unaware of the Claimant’s depression and anxiety at this time. The investigation concluded with a recommendation that there was a case to answer at disciplinary.  The conclusion was based, in part, on the Claimant’s odd behaviour during the investigatory interview.

The Claimant was subsequently dismissed without notice for gross misconduct. 

Judgment

The Equality Act prohibits a person (A) from discriminating against a disabled person (B) when A treats B unfavourably because of something arising as a consequence of B’s disability.

Discrimination is permissible when A can demonstrate the objective justification defence that the unfavourable treatment is a ‘proportionate means of achieving a legitimate aim’.

The EAT considered the trustee’s reasoning to be discriminatory. The Claimant’s behaviour was ‘something arising in consequence’ of her depression and anxiety, and his recommendation of disciplinary action was unfavourable treatment. 

The treatment was, however, objectively justified. 

Comment

The decision is slightly troubling as the threshold for discrimination arising in consequence of a disability appears to have been lowered significantly from previous decisions.  Despite the trustee being (a) unaware of the Claimant’s disability at the time (b) having made observations about the Claimant’s demeanour during interview which seemed to be a reasonable approach to suspicious behaviour and (c) the Claimant’s behaviour during interviews only forming a minor part of his reasoning, the EAT still found discrimination to be made out. 

To mitigate risks, when you appoint someone to investigate, they should be appropriately trained to know what to look out for and to document accordingly.  

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