Disability discrimination: Dismissal of an employee whose autism influenced their conduct was neither unfair nor discriminatory

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Disability discrimination: Dismissal of an employee whose autism influenced their conduct was neither unfair nor discriminatory

Published 16 noviembre 2022

The EAT has upheld a tribunal’s decision that an employer’s dismissal of an autistic employee for crossing professional boundaries was fair and objectively justified.

THE FACTS

Ms Morgan was a social worker in Buckinghamshire Council’s fostering team.  She was disabled, suffering from (among other conditions) autism and dyslexia. 

The council’s code of conduct outlines the circumstances under which gifts can be given to children, emphasising the risk that gift giving can be “misinterpreted by others as being a gesture either to bribe or groom”. 

Following a disciplinary process, Ms Morgan’s employment was terminated.  Her dismissal was primarily (the tribunal later found) for giving gifts to a child for whom she was responsible without the authority of her manager and for writing a case note in inappropriate terms consisting largely of her own thoughts and feelings.  Ms Morgan unsuccessfully appealed her dismissal.  In the appeal decision, the appeal officer stated that it was a matter of serious concern that Ms Morgan had chosen to withhold her autism by  “masking” throughout much of her employment, potentially putting vulnerable children at risk. 

Ms Morgan claimed in the employment tribunal that she had been unfairly dismissed. She asserted that her conduct had been influenced by her autism and she claimed that, in dismissing her for her conduct, the council had subjected her to discrimination arising from her disability.  Ms Morgan also claimed that the appeal officer’s criticism of her for masking her autism was an act of harassment. 

The employment tribunal found that Ms Morgan had not been unfairly dismissed.  It also found that she had not been subjected to discrimination arising from her disability, because the council had justified her dismissal.  However, the tribunal held that she had been subjected to harassment, in that the appeal officer had suggested that Ms Morgan had chosen to act deceitfully in concealing her autism when she had in fact simply learned behaviours which led to her masking her autism, and it was offensive of the appeal officer to suggest that she had acted deceitfully in doing so.  

Ms Morgan appealed to the EAT, and the council cross-appealed the harassment decision.  The appeal and the cross appeal were unsuccessful. 

Key points in the tribunal’s and the EAT’s judgments were:

  • The Council had reasonably formed the view that Ms Morgan had breached professional boundaries and that the Council could not be confident that she would not do so again if, instead of being dismissed, she were to be given a written warning;
  • Ms Morgan knew that she needed proper authority for gift giving, and she also knew that such a breach was a potentially serious matter for which she could be dismissed;
  • Although there was evidence that another employee had given an unauthorised gift and was not subjected to disciplinary action, this did not necessarily mean that Ms Morgan’s dismissal had to be unfair;
  • Although the appeal officer’s comment was a single comment, it was a considered observation in a formal letter, and it could potentially reach the high threshold required of a harassment claim.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This decision is not a departure from existing case law.  However, it is a useful reminder to employers that employees’ disabilities (particularly hidden health conditions) may have an impact on their conduct and their performance. In considering what action to take in relation to performance and conduct issues, the employer must take the impact of the disability into account and justify any disciplinary action or dismissal, by showing they are pursuing a legitimate aim proportionately.  Employers must also be careful not to harass individuals who are neurodiverse by criticising them for adopting strategies to help them cope with their conditions.

Morgan v Buckinghamshire Council

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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