T Duncan v Fujitsu Services Ltd

Under Equality Act 2010 section 15, the tribunal must identify the relevant “something”, determine objectively whether it arose in consequence of disability, and then assess justification. The causal link may be indirect and disability need only be an effective cause, but a tribunal is not required to decide a distinct causal case which was not advanced before it.

Justification under section 15(1)(b) requires the tribunal itself to conduct an objective proportionality assessment. It must balance the employer’s legitimate needs against the discriminatory impact and consider less discriminatory measures. A properly reasoned assessment may nevertheless find dismissal proportionate for serious, repeated abusive workplace communications, notwithstanding that some remarks arose from disability.

The claimant, a software developer with ADHD and ASD, was dismissed for gross misconduct after inappropriate and offensive Slack communications concerning colleagues and managers. He contended that the remarks arose from disability and that dismissal was discriminatory under section 15 of the Equality Act 2010.

Following an 18-day hearing, the Watford Employment Tribunal dismissed the claimant’s unfair-dismissal and dismissal-related discrimination claims. It accepted that some comments were connected with disability, but held that dismissal was a proportionate means of pursuing specified legitimate aims.

The claimant appealed, arguing that the tribunal had failed to address a direct disability-related cause of his language and had inadequately analysed proportionality, including alternatives to dismissal.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the section 15 claim.

2. The tribunal had addressed the case actually advanced: that the claimant’s abusive language was indirectly connected with disability through frustration about alleged failures to make reasonable adjustments and related treatment. That was a Risby-type causal case. The claimant had not advanced a distinct case that the language itself resulted directly from disability. His pleadings, evidence, written submissions and reconsideration application did not raise it. There was also little evidential support for that suggested direct link.

3. The tribunal correctly applied the objective justification exercise required by section 15(1)(b) of the Equality Act 2010. It identified legitimate aims, considered the serious financial, emotional and career effects of dismissal, and considered the claimant’s contentions that the messages were jokes and were not sent directly to their subjects.

4. The tribunal was entitled to give substantial weight to the strength and repeated nature of the abusive language, its use in work time and on the employer’s systems, the claimant’s awareness that it could result in disciplinary action, and his failure to give an assurance that it would not recur. Its finding that dismissal was proportionate to prevent threatening language, workplace harassment and threats of violence was an objective assessment open to it. Its conclusion that other aims would not alone justify dismissal without warning and persuasion demonstrated that it had considered sanctions short of dismissal.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 44.
• Employment Tribunal (Watford): By judgment sent on 29 June 2023, dismissed all unfair-dismissal and dismissal-related disability-discrimination complaints, while allowing five pre-dismissal disability-discrimination complaints.