Misconduct and disability: Dismissal can be fair

The Equality Act 2010 protects disabled employees from discrimination arising from their disability. This includes situations where someone is treated unfavourably because of behaviour linked to their condition – not just the condition itself. But that protection isn’t absolute. Employers are not expected to overlook serious misconduct just because it may be linked to a disability.

If the decision to discipline or dismiss can be justified as a proportionate way to achieve a legitimate business aim, it may still be lawful. This was confirmed in the recent case of Duncan v Fujitsu Services, where the Employment Appeal Tribunal upheld a dismissal even though some of the employee’s behaviour was linked to his disability.

Mr T Duncan v Fujitsu Services Ltd

In this case, an employee who had ADHD and autism, was found to have sent highly offensive and abusive messages to colleagues via Slack during work hours. He claimed his behaviour arose from his disability, but didn’t fully engage with the employer’s attempts to understand this. The employer dismissed him for misconduct.

The tribunal found the dismissal to be fair and lawful. The employer had legitimate, work-related goals with the dismissal – preventing threatening and harassing behaviour and maintaining a safe and respectful working environment. Given the seriousness of the language and the lack of any assurance it wouldn’t happen again, dismissal was considered proportionate.

Key takeaways for employers

This case shows that while disability must be carefully factored in, it doesn’t mean serious misconduct can’t be addressed. To ensure fairness:

• Always consider medical evidence and whether behaviour may be linked to disability.
• Identify and document your legitimate business aim (e.g. protecting staff from harm).
• Consider whether dismissal is a proportionate response or whether a lesser sanction might achieve the same goal.

Further reading

• Equality Act 2010: guidance – GOV.UK