M Morgan v Buckinghamshire Council

A tribunal may uphold dismissal for disability-related conduct where dismissal is a proportionate means of protecting legitimate professional boundaries. The assessment under Equality Act 2010 section 15 is objective and differs from the range-of-reasonable-responses assessment for unfair dismissal, although the relevant facts may overlap.

An employee's reliance on disability as an explanation, coupled with the absence of expert evidence addressing recurrence and possible safeguards, may be relevant to both assessments. It does not amount to penalising the employee for disability. A finding that conduct had the effect of violating dignity under section 26 is sustainable where, having considered the claimant's perception and all circumstances, the tribunal reasonably concludes that a formal statement implied deceitful concealment of autism.

The claimant, a supervising social worker in the respondent's fostering team, was dismissed for conduct concerning a child for whom she was responsible. The principal matters were unauthorised gifts and a case note which the respondent considered inappropriate and reflective of blurred professional boundaries.

The Employment Tribunal dismissed complaints of unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010. It found dismissal within the range of reasonable responses and a proportionate means of achieving the legitimate aim of maintaining professional boundaries. It upheld one harassment complaint arising from the appeal officer's statement that the claimant had chosen to mask her autism, potentially putting vulnerable children at risk.

The claimant appealed the dismissal-related decisions. The respondent cross-appealed the harassment finding. The central issues were the relevance of the declined occupational-health referral, the effect of autism and dyslexia, the fairness and proportionality of dismissal, and whether the masking statement had the proscribed effect under section 26.

1. Both the appeal and cross-appeal were dismissed. The Employment Tribunal made no error in holding that dismissal for conduct was fair under section 98 of the Employment Rights Act 1996 and justified under section 15(1)(b) of the Equality Act 2010.

2. The tribunal did not treat the claimant's refusal to consent to a further occupational-health referral as further misconduct or as a new reason for dismissal. It properly treated the absence of the report as relevant: the appeal officer, and the tribunal for the objective section 15 assessment, lacked expert evidence on whether disability had affected the conduct, the risk of repetition, and measures capable of reducing that risk.

3. The tribunal did not penalise the claimant for autism. Her own case was that autism explained the conduct. It was legitimate to consider that assertion, her incomplete acceptance of fault, and the lack of further expert evidence when assessing whether a warning would sufficiently manage the risk of future inadvertent boundary breaches.

4. The tribunal was entitled to focus on autism rather than undertake a separate analysis of dyslexia. By the merits hearing, adjustment complaints concerning dyslexia were no longer live. The live dismissal-related case centred on autism, and the tribunal found that the claimant understood that prior managerial authority was required for the gifts and that the substantive content, rather than spelling or grammatical errors, was material to dismissal.

5. The generic safer-working guidance had been incorporated through the respondent's contractual and conduct documents. The tribunal was entitled to find that it required proposed gifts of more than insignificant value to be discussed with, and authorised by, a senior manager. Despite evidence of gift-giving and an apparently disparate case, the tribunal was entitled to regard the claimant's circumstances as materially different and to uphold dismissal.

6. The harassment finding was open to the tribunal. Read as a whole, its reasons showed that it considered the claimant's perception, the circumstances and the reasonableness requirement in section 26(4). It was not perverse to find that the formal statement implied the claimant had deceitfully concealed autism and thereby had the effect of violating her dignity.

• Employment Appeal Tribunal: The claimant's appeal against dismissal of the unfair-dismissal and section 15 claims, and the respondent's cross-appeal against the harassment finding, were dismissed: [2022] EAT 160.
• Employment Tribunal (Watford): The tribunal dismissed the unfair-dismissal and discrimination-arising-from-disability claims, but upheld one disability-harassment complaint. The lower decision's citation was not stated in the judgment.