M Morgan v Buckinghamshire Council

The Employment Appeal Tribunal dismissed the claimant’s appeal against an employment tribunal’s findings that her dismissal for misconduct (principally the unauthorised giving of gifts to a child in her care and an inappropriate case note) was fair and that dismissal was a proportionate means of achieving a legitimate aim for the purposes of section 15 Equality Act 2010. The tribunal had accepted that the claimant was disabled (autism spectrum disorder, dyslexia and other conditions) but found that the respondent reasonably concluded she had breached professional boundaries and that it could not be confident she would not repeat that conduct.

The tribunal took into account that the claimant declined to consent to a further occupational health referral and considered the absence of expert evidence relevant to both the band of reasonable responses test under section 98 Employment Rights Act 1996 and the section 15(1)(b) proportionality inquiry. It found that the respondent’s interpretation of the guidance requiring prior managerial approval for gifts to children was open to a reasonable employer and that dismissal fell within the range of reasonable responses.

The Employment Appeal Tribunal also dismissed the respondent’s cross-appeal against the tribunal’s single finding of harassment by effect under section 26 Equality Act 2010 in relation to a sentence in the appeal decision that said the claimant had "chosen" to mask her autism. The EAT held that the tribunal was entitled to conclude that the claimant’s perception that the remark violated her dignity was reasonably held.

Background and procedural posture: The claimant, a supervising social worker, was dismissed after a disciplinary process which found she had given unauthorised gifts to a child in her care and had recorded a case note considered inappropriate. She brought claims of unfair dismissal and disability discrimination under the Equality Act 2010. The respondent accepted the claimant was disabled (autism spectrum disorder, dyslexia, dyspraxia and other conditions). The employment tribunal (Watford) dismissed the unfair dismissal and section 15 claims but upheld one harassment complaint arising from a remark in the appeal decision about "masking". Both parties sought further review and the matter came before the Employment Appeal Tribunal by way of appeal and a cross-appeal. The EAT delivered a reserved judgment on 28 October 2022 ([2022] EAT 160).

Nature of the claim / relief sought: The claimant sought a finding that her dismissal was unfair and that it was discriminatory under section 15 Equality Act 2010 (discrimination arising from disability), and other disability-related complaints. The respondent cross-appealed the tribunal’s single successful harassment finding.

Issues framed by the court: key issues included (i) whether the tribunal was entitled to conclude dismissal was within the band of reasonable responses to misconduct; (ii) whether dismissal was a disproportionate means of achieving a legitimate aim under section 15(1)(b); (iii) whether the tribunal impermissibly relied on a point (the claimant’s refusal to consent to an OH referral) that had not been argued or pleaded against her; (iv) whether the tribunal failed to address the causative impact of dyslexia as well as autism; (v) the interpretation and communication of guidance on gift-giving and whether comparable examples showed inconsistency of treatment; and (vi) whether the harassment finding (the reference to the claimant having "chosen" to mask her autism) was perverse or inadequately reasoned.

Court’s reasoning and outcome at the EAT: The EAT rejected the appeal on all grounds. It held that the tribunal had not treated the claimant’s refusal to consent to occupational health as independent misconduct but had properly treated the absence of expert evidence as relevant to both the fairness of the sanction and the section 15 proportionality inquiry. The tribunal’s assessment that the claimant had understood the need to seek managerial approval for gifts, and that unauthorised gift-giving together with the case note justified dismissal within the band of reasonable responses, was open to it on the evidence. The tribunal had not erred in focusing on autism because the claimant’s live case and the internal process centred on autism; earlier complaints about adjustments for dyslexia were no longer live at the full merits hearing. Finally, the EAT found no perversity in the harassment finding: the tribunal reasonably held that the remark could be perceived as implying deceit and that it was reasonable for the claimant to consider it a violation of dignity.

• Appellate result: Appeal and cross-appeal dismissed; tribunal decisions upheld.
• Legal provisions principally engaged: section 98 Employment Rights Act 1996; sections 15 and 26 Equality Act 2010.

The appeal and cross-appeal are dismissed. The EAT held that the employment tribunal did not err in law or perversely in fact: the tribunal was entitled to find the claimant’s dismissal for conduct (unauthorised gift-giving and an inappropriate case note) was within the band of reasonable responses of a reasonable employer and that dismissal was a proportionate means of achieving a legitimate aim under section 15 Equality Act 2010. The tribunal properly treated the claimant’s refusal to consent to further occupational health assessment as relevant evidence (through the absence of expert advice) rather than as new misconduct, and it was entitled to focus on autism given how the case was pleaded. The harassment finding in relation to the appeal decision’s remark about "masking" was also reasonably open to the tribunal and not perverse.

Employment tribunal (Watford) reserved decision: dismissal (conduct) upheld; claims of unfair dismissal and discrimination arising from disability dismissed; one harassment complaint upheld. Appellate process included permission hearings (Choudhury P for appeal; HHJ Wayne Beard for cross-appeal). Employment Appeal Tribunal judgment dismissing appeal and cross-appeal: [2022] EAT 160 (28 October 2022).