Case law comment: Discrimination arising from disability

In the case of Mr C Kelly v Sainsbury's Supermarkets Limited, despite concluding that Mr Kelly had acted in a manner which Sainsbury's viewed as a breach of their harassment and fair treatment policies, their decision to dismiss Mr Kelly was found to be unfair and an act of disability discrimination by the Norwich Employment Tribunal.

Summary of case

Mr Kelly commenced employment in March 2000 as a trainee manager. He was unfortunately involved in a car accident in 2004 which caused a brain injury and he explained that since the injury he had a "child-like" nature and was prone to saying whatever was on his mind. The accident also affected Mr Kelly's performance and his training to become a manager could not continue.

In 2010 Mr Kelly received a warning for making inappropriate comments to a female colleague and a further comment he made in December 2015 was dealt with informally. In April 2020, a complaint was made and this led to formal disciplinary action. Allegations of making sexual and racial comments to staff members as well as rubbing the shoulders of some of his female colleagues, were included in the evidence gathered.

The disciplinary and appeal officer disregarded Mr Kelly's explanation that his behaviour and the comments were as a result of his brain injury. However, this explanation was supported by an occupational psychologist who had assessed Mr Kelly in 2011 and found he had significant limitations in terms of cognitive functioning, including aspects of his working memory and that some of his behaviour “may be partially accounted for as a consequence of a past head injury and associated hidden difficulties.”

Despite not behaving in this way whilst working for Sainsbury's in the 10 years prior to the accident, the disciplining officer upheld the allegations of sexual harassment and inappropriate behaviour and Mr Kelly was dismissed on 31 July 2022. On appeal, the appeal officer said it would have been unreasonable to take into account the car accident that had happened 16 years previously.

Judgement

In considering all the facts, Employment Judge Martin Warren stated "Mr Kelly had an increased propensity to act in an inappropriate manner and to make inappropriate comments and that the same arose in consequence of his disability." He further found it "surprising" that that neither the appeal officer nor HR had read and considered the implications of the psychologist’s report when Mr Kelly raised the impact his head injuries had had on his health.

The Tribunal ruling concluded that Mr Kelly's behaviour was conduct arising from his disability and that the act of disciplining and dismissing Mr Kelly was unfavourable treatment. The Tribunal accepted that providing a safe working environment that is free from harassment was a legitimate aim, however, Sainsbury's did not achieve that aim by proportionate means. Consequently, Mr Kelly was discriminated against by reason of his disability and unfairly dismissed. A remedy hearing to consider compensation has been set for 20 May 2022.

What does the law say?

Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

(Section 15 Equality Act 2010)

In essence, discrimination arising from disability occurs when someone is treated unfavourably because of something arising in consequence of disability rather than the disability itself. This is what makes it different to direct discrimination. An example includes, disciplining an employee or not paying a bonus due to high absence levels when the time off was to enable the employee to receive treatment for cancer. It is not the disability itself (cancer) but something that happens in consequence to it (the absence).

An employer needs to show their action or treatment was proportionate – known as objective justification and often referred to as the 'justification test'. The tribunal has to objectively balance the discriminatory effect of the treatment on the individual, (in cases of indirect discrimination that would have been in relation to the disadvantaged group) and the reasonable needs of the employer. With this form of discrimination there is no need to compare the treatment with someone else but it cannot occur unless the employer knew (or should have known) that the employee was disabled.

Disciplinary action including dismissal

It is fair to say that the comments and actions of Mr Kelly warranted an investigation. An employer has a duty of care to all employees and cannot be seen to tolerate discrimination or harassment in the workplace. Formal complaints were made and these needed to be explored.

However, any defence put forward by an employee warrants careful consideration. There are often mitigating factors and if health issues come into play, they must not be ignored. It may well be that the mitigation is not considered sufficient to prevent dismissal and that a more proportionate outcome (a warning and training) was rendered inadequate when taking into account what had happened. There is always a balancing act and in some cases the rights of different employees can appear conflicting.

The issue it would seem in the Kelly case is that medical evidence was not considered at all. Despite Mr Kelly mentioning that he had seen an occupational psychologist nobody in the disciplinary process thought to obtain copy of the report or seek an opinion from a medical expert. This is not going to be considered reasonable by any employment tribunal. In its Judgement the Tribunal stated "A reasonable employer would have gone on to make further enquiries, at the very least to have looked at Mrs Hunting’s (the occupational psychologist's) report and considered the implications of that, but also through Occupational Health to have sought up to date medical and psychiatric advice, both on Mr Kelly’s culpability and the possibility of avoiding repetition of such conduct in the future."

This failure to gather all the relevant information needed to establish the fair and appropriate outcome for Mr Kelly's behaviour, led to a finding that Sainsbury's did not expect. So whilst Sainsbury's were disappointed by the judgement, this case raises some important lessons for employers to take note of.

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