Hi everyone! It’s me Faiza, the latest addition to the Precept team. I have been with Precept now for almost two months and boy, has the time flown! I am not sure if that is a good thing or not – I would say it is! I have been engrossed in all things employment from tribunal deadlines to day-to-day employment support. The team have been very supportive and helpful both for work and helping me settle in and get comfortable so I am very grateful.
Now for this week’s blog, I thought I’d give you a rundown of how to handle misconduct issues that overlap with disability. Imagine this – a misconduct issue comes up, and during the investigation process which should be “relatively” straightforward (famous last words) the employee says the misconduct was caused by a disability, what would you do? Well this is just one of the many things I’ve been tackling since I joined Team Precept.
Don’t worry though, I am about to give you a rundown of how to navigate this minefield without derailing your entire disciplinary process. I would say that this is a legal tightrope and recent case law shows how easy it is for employers to slip.
1 Do not ignore a health disclosure – This is the most important one as the very moment an employee indicates that a medical condition contributed to the alleged misconduct, the employer is essentially “on notice” that the employee may be a disabled person under the Equality Act 2010. This means that once such disclosure is made, the employer has extra legal responsibilities to think about (more on this below) and precisely what needs to be done may change depending on how the behaviour is judged and how the disciplinary process should be handled. Failing to take the disclosure seriously is extremely risky and can undo an otherwise exemplary and fair disciplinary process.
2 Consider reasonable adjustments – Employers have a duty to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage and the employer knows or ought reasonably to know the employee is disabled. In a disciplinary context, adjustments are often very practical and may look like:
- Offering virtual meetings or alternative locations (so long as they’re private and confidential. We don’t want a formal process in the local Costa Coffee!)
- Relaxing companion rules (for example, allowing a family member or friend to attend)
- Allowing additional breaks or extended deadlines during meetings
- Providing information in alternative formats (for example providing a short agenda before meetings)
Which adjustments should be implemented vary from case to case. Whilst it’s good to be proactive in offering adjustments, you should also speak to the employee to ensure their views are taken into account. If you’re completely stuck for ideas, a referral to Occupational Health may be needed. And remember you don’t need to make every adjustment under the sun, just the ones that are reasonable.
3 Is the conduct linked to disability? – This is perhaps the core legal question and a very loaded one, that would need it’s own separate blog. However, what you do need to know is that if an employee’s misconduct arises from a disability then disciplinary action may amount to discrimination arising from disability unless the employer can justify the disciplinary action as a proportionate means of achieving a legitimate aim (meaning the employer must have a real business reason for the action and needs to choose the least severe option that still solves the problem). This is the point at which many employers get the analysis wrong. Here are some key cases where the tribunal determined this exact issue:
- Hayes v Scania – An employee with ADHD was dismissed for sending offensive messages after his lunch was tampered with. While the disability influenced his behaviour, the tribunal found he remained responsible for his actions and the employer’s response was proportionate.
- Duncan v Fujitsu Services – The employee, who had ADHD and ASD, sent extremely offensive messages at work and then failed to engage with the disciplinary process. The Employment Appeal Tribunal (EAT) accepted that dismissal was justified to protect staff and maintain a safe environment, especially given the severity of the language and the absence of assurances the behaviour would not recur.
- Anea v OCS UK & I Ltd – A recent EAT decision involved allegations of sexual harassment and constructive dismissal linked to health‑related issues. The EAT upheld that dismissal was fair, emphasising that even where medical factors are present, employers can take decisive action if the behaviour risks staff safety or organisational integrity.
4 Practical steps for employers:
So whilst it is a bit of a tightrope, case law does make clear that we can still deal with inexcusable behaviour. There are just a couple of practical steps to consider before we proceed.
- Obtain medical evidence where available e.g. occupational health, diagnosis etc.
- Assess how closely the behaviour relates to disability – the stronger the link between misconduct and disability, the more you’re going to need to do to show you are acting reasonable to achieve a really strong legitimate aim.
- Identify the “legitimate aim” to get ahead of yourself – from experience and case law common ones include protecting staff, ensuring safe working practices, maintaining a work environment free from harassment. When you’re drafting letters or dealing with the disciplinary, start to set this out.
- Consider proportionality – employers should ask themselves whether training or deployment could achieve the same aim, whether the employee has shown remorse and commitment to improve, is dismissal the only safe option? Again, set out in writing the other options considered and why these aren’t appropriate. Putting your thought process down on paper shows lawyers and tribunals you’ve actually thought about the legal tests before any action is taken.
With claims linked to neurodivergence (which can often be a disability under the EqA) on the rise, we recommend that employers take a structured, careful and well-documented approach. As the above guidance will hopefully show you, if poorly handled, these situations can lead to costly discrimination claims and reputational damage.
If you’d like help reviewing a misconduct issue or need advice on making adjustments during a disciplinary process then please speak to the team at Precept.
You can contact us by calling us on 01332 866610 or emailing enquiries@precepthr.com.
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