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What if an employee's misconduct at work might be linked to their disability?

Today I'm taking a deeper dive than usual into what's quite a challenging area of employment law for both line managers and HR professionals to grapple with - managing misconduct that is potentially linked to an employee's disability.


We all know that companies mustn’t discriminate against employees with disabilities. And most of us are familiar with the concept of making reasonable adjustments for disability at work. But what if an employee’s disability leads them, or influences them, in committing misconduct?


A recent Employment Appeal Tribunal (EAT) case called Morgan v Buckinghamshire Council explored this issue. I’m going to discuss both its findings and the lessons that employers can learn from them in this article.



The case itself

Morgan v Buckinghamshire Council involved a Social Worker who was dismissed after breaches of procedure and protocol when working with a vulnerable child. No harm had come to the child, but her actions were felt by the Council to be inappropriate.

The employee argued that the misconduct was directly related to their autism, and that their dismissal was therefore an act of disability discrimination. The EAT disagreed, deciding that the Council’s decision to dismiss was both a reasonable response and proportionate in the circumstances. The Morgan dismissal was therefore fair and lawful. But would this always be the case in every situation? I’ve read through the EAT's judgment, and as a result, here’s my guidance for employees on what to do when circumstances like this arise in the workplace.


Identifying a potential link between misconduct and disability.

If investigating allegations of misconduct and you become aware that the employee has a disability that could have potentially influenced their actions, think about this carefully.

In my experience these circumstances are more likely to arise when the employee’s disability is neurological or mental health-related. Conditions like depression or autism can genuinely influence people’s behaviour and may in some circumstances make good decision-making at work more difficult. For example, an individual with long-term depression might be more likely to lose their temper or focus than someone without depression. An autistic person might be more likely to misinterpret the subtleties of a professional code of conduct than someone without autism.


An ethical and considerate employer will seek out ways to ensure that the employee isn’t unfairly disadvantaged by their condition. That means openly discussing and considering these possibilities during investigation and/or disciplinary hearing – especially if the employee brings the matter up as part of their defence.


The role of Occupational Health

If an employee suggests or agrees that their misconduct might have been influenced by their disability, then it’s often a good idea to involve Occupational Health (OH). As ever with OH, asking the right questions and providing the right information is key. Send them full details of the misconduct and what you know of the employee’s disability. Ask OH if they think there is a link between them, what the nature of that link is, and if relevant, what adjustments could be made to make such misconduct less likely in future.


What if (as happened in the Morgan case) the employee refuses consent to be referred to OH? In that case, the employer must make its future decisions without the benefit of medical input, and it is fair to include this fact when deliberating on the possibility of any adjustments to the disciplinary process.


Decide if the misconduct and disability are linked

Based on the results of a thorough investigation, including statement(s) and input from the employee, as well as any OH evidence, the employer must decide if they think the misconduct and disability are linked. This will usually form part of the disciplinary hearing.

If you decide there is a link, how strong is it? Did the employee’s disability make their misconduct just slightly more likely, or was there a strong causal connection between the two? The answer to this will probably influence whether you keep this process as one of misconduct, or whether you consider it instead as a capability matter in which the employee has tried their best, but had little control over their actions.


Can you prevent the misconduct from reoccurring?

If you do believe that the employee’s disability has influenced their conduct at work, that doesn’t mean that the conduct in question is automatically fine! As an employer, you’re still entitled to run your business in a safe and professional manner. Some actions and behaviour are just unacceptable, whatever the causes of them.


Is there anything you could do as an employer to reduce the risk of a reoccurrence? Reasonable adjustments might include additional training, and/or altered duties for example. If such supportive steps are feasible and would make future misconduct by the employee unlikely, then they should be taken. A dismissal in such circumstances is not recommended – a final written warning is likely to be fairer.


However, if as in the Morgan case, the employee’s actions would normally be classed as gross misconduct and the risk of them re-occurring even with reasonable adjustments is too high for the employer to accept, then dismissal may still be a justifiable option.


Your final decision

In the end, the employer needs to make a decision based on all considerations so far. Will you issue a formal warning? Will you dismiss? Your decision must be both reasonable and proportionate to the circumstances at hand.


Be very clear about:

1. Whether you believe the misconduct was linked to the employee’s disability

2. The seriousness of the misconduct

3. The steps you have taken to investigate and consider the matter from various perspectives

4. What options are available to reduce the risk of its reoccurrence (including any potential reasonable adjustments)


When you're confident in understanding these four factors, you are ready to make an end decision on the case. That decision might be a formal warning, it might be dismissal, or it might even be no further action at all.


Appeal

Always give employees in these situations a right of appeal against any formal sanction or dismissal. Let someone else independently re-consider matters and thereby demonstrate the fairness of your procedures.


Final words

Situations like this aren’t easy – and especially not for the employee whose job might be at stake. Respect, open-mindedness, patience, and good listening are essential.

If you’d like additional advice and support with a challenging misconduct and/or disability matter, do reach out to me at hello@obrienhr.co.uk. I’d be happy to help.

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