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Hensman v Ministry of Defence [UKEAT/0067/14]
Background
Discrimination arising from disability occurs where an employer treats an employee or job applicant unfavourably because of something arising in consequence of that person’s disability, and the employer cannot show that the treatment is objectively justified as a proportionate means of achieving a legitimate aim.
The Facts
The Claimant was discovered to have covertly recorded a colleague in the shower area of shared accommodation. He was subsequently arrested and charged with various criminal offences. The Ministry of Defence (‘MoD’) suspended him on full pay.
A Crown Court Judge found that the Claimant suffered from Asperger’s syndrome, as well as other conditions, including obsessive compulsive disorder. He further accepted that there was a link between the Claimant’s disorders and his actions in recording the covert footage. The Judge took the Claimant’s disorders into account when sentencing him, and imposed a three year community order.
Following the Judge’s decision, the MoD commenced disciplinary proceedings against the Claimant, which resulted in dismissal.
The Claimant brought claims of disability discrimination and unfair dismissal.
The first instance Tribunal found that, in dismissing the Claimant, the MoD had subjected him to discrimination arising from disability. It also made a finding of unfair dismissal. The MoD then appealed to the Employment Appeal Tribunal (‘EAT’).
Judgment
The EAT overturned the Employment Tribunal’s decision on both discrimination arising from disability and unfair dismissal.
The EAT accepted the MoD’s argument that the Tribunal had erred in finding that the Claimant’s dismissal was not proportionate for the purposes of discrimination arising from disability. In conducting the balancing exercise, the Tribunal should have assessed the particular considerations in the mind of the MoD. These were not confined to the fact that the Claimant had been convicted of a crime, but also related to questions of breach of trust.
Tips for Employers
Scenarios such as the above are difficult for both employers and Tribunals. As awareness of Asperger’s and other autistic spectrum disorders continues to grow, along with the number of diagnoses, it is increasingly likely that issues surrounding such disorders will arise in the workplace. The TUC has now published a guide, Autism in the Workplace, which can be found here.
As we have advised in recent updates, ACAS Early Conciliation became mandatory for most types of Employment Tribunal claims from 6 May 2014. On 3 September 2014, ACAS published its first set of statistics on Early Conciliation since the rules took effect.
During the period 6 April to 30 June 2014, 17,145 people used the service. Notifications were received at a rate of approximately 1,000 per week during April, which rose to around 1,600 once notification became mandatory in May. The full statistics can be found here.
As previously explained, employers need to be aware of Early Conciliation and the fact that it ‘stops the clock’ on the limitation period for bringing a claim in the Employment Tribunal. As a result, employers could still be at risk of receiving claims from employees well after the primary limitation period has expired.
