In this case, the EAT held that an employer's decision to dismiss a disabled employee for sending inappropriate and highly offensive online messages to colleagues via "Slack" was justified, even though some of those comments did arise from the employee's disability.
Facts
Mr Duncan joined Fujitsu Services Ltd (FSL) in 2017 as a graduate trainee, later becoming a software developer. FSL knew from the start of Mr Duncan's employment that he had Attention Deficit Hyperactivity Disorder (ADHD) and Autistic Spectrum Disorder (ASD) and it accepted that these amounted to disabilities under the Equality Act 2010.
Mr Duncan brought a grievance, which was dismissed in January 2021. The materials he disclosed as part of that grievance included logs of his messages on "Slack", a software platform licensed by FSL for its employees to communicate with each other. Some of his messages with two colleagues, W and S, contained inappropriate and offensive language, including threats of violence and multiple uses of serious swearing / foul language.
FSL investigated all three employees. Following a disciplinary process, W was dismissed without notice and S was given a final written warning. Mr Duncan did not attend his disciplinary hearing, but submitted information in writing, referring to the impact of his ADHD and ASD on his behaviour. The disciplinary manager sought further details from Mr Duncan, including a copy of a report from his Occupational Psychologist. Mr Duncan did not disclose that report and did not engage further in the disciplinary process.
On 16 April 2021, FSL dismissed Mr Duncan without notice. Mr Duncan's internal appeal was unsuccessful and he brought employment tribunal claims for unfair dismissal and discrimination arising from disability. The tribunal accepted that some of the offensive messages could be said to arise from Mr Duncan's disabilities. However, it held that the dismissal was justified as a proportionate means of achieving FSL's legitimate aims of preventing the use of threatening language about managers and colleagues, preventing harassment and other behaviour that leads to a hostile environment, and preventing threats of violence against colleagues. Mr Duncan appealed.
The EAT dismissed the appeal. The way Mr Duncan had put his case before the tribunal was that his offensive messages were caused by his indignation at the way FSL treated him in relation to reasonable adjustments that he had requested. He had not previously argued that the language in those messages was itself because of his disabilities (i.e. that his disabilities caused an "involuntary loss of control of emotion" and he didn't "understand social rules"), so he could not now appeal on that basis. In any event, the EAT noted that there was very little evidence in support of a direct link. There was no medical evidence to that effect before the tribunal, and the abusive language only occurred in the Slack messages, not in other communications or face to face meetings with colleagues in stressful situations. In addition, the fact that Mr Duncan had initially disclosed edited versions of the messages to FSL in his grievance showed that he was aware they might be viewed as misconduct, and Mr Duncan had not engaged with the disciplinary process to provide explanations for his inappropriate language.
The EAT went on to uphold the tribunal's decision that, although some of the offensive messages did arise from Mr Duncan's disability, the dismissal was justified as a proportionate means of achieving FSL's legitimate aims. The tribunal had found that the comments had been "very strong examples of foul language and abusiveness towards colleagues”; they had been made in work time and Mr Duncan should have been aware of the possibility that they might come to FSL's attention. There was also no evidence that Mr Duncan provided any reassurance to FSL that his offensive remarks would not be repeated. The EAT considered that the tribunal had properly considered options short of dismissal and had reached a conclusion it was entitled to reach.
What does this mean for employers?
This case is helpful for employers, as it confirms that dismissing a disabled employee for conduct that is truly offensive can be objectively justified, even if the conduct could have arisen from the employee’s disability. In this context, it is important to operate a thorough disciplinary process and properly document any decisions. Note, though, that in this case the employee did not properly engage with the disciplinary process and failed to disclose a medical report which might have supported his case. Employers must take any relevant medical evidence into account when considering dismissal of a disabled employee whose conduct might have arisen from their disability.
