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The Employment Appeal Tribunal (EAT) has upheld a decision of the Employment Tribunal (ET) rejecting a postman’s claims of unfair dismissal and discrimination arising from disability, confirming that the ET had made no error of law in its findings (Kirby v Royal Mail Group Ltd).
The ruling provides helpful guidance on how tribunals assess misconduct linked to disability and the role of occupational health evidence in discrimination and unfair dismissal claims.
Background to the Case
The claimant had been employed as a postman since 2004. From 2012, he suffered from stress, anxiety and depression, which his employer accepted amounted to a disability under Section 6 of the Equality Act 2010.
On 5 October 2019, the claimant attended work but refused to start his delivery round. He was alleged to have behaved abusively towards a manager and again refused to carry out his duties. During the incident, he stated that he felt like killing himself.
After leaving the delivery office, he posted a series of Facebook comments which were viewed by colleagues and considered unacceptable. When he returned to work two days later, he was suspended pending investigation and behaved aggressively towards the resource manager.
Dismissal and Tribunal Proceedings
Following a disciplinary hearing, the claimant was summarily dismissed. An occupational health report concluded that his medical condition did not explain his conduct.
The claimant’s internal appeal was rejected, and he brought claims in the Employment Tribunal, including:
- unfair dismissal; and
- discrimination arising from disability under Section 15 of the Equality Act 2010.
The ET dismissed all claims. The claimant appealed to the EAT.
EAT: No Error of Law
Before the EAT, the claimant argued that his behaviour, including his comments at work and on Facebook, must necessarily have arisen in consequence of his disability.
He also argued that the occupational health report was fundamentally flawed because the referral had not mentioned that he had said he felt like killing himself.
The EAT rejected these arguments. It held that:
- there is no requirement for an occupational health referral to detail every incident;
- it is generally for the employee attending the assessment to explain missing details and symptoms; and
- the ET was entitled to rely on the occupational health evidence before it.
The EAT found that the ET had been entitled to conclude that the claimant’s conduct did not arise in consequence of his disability.
Proportionate Means of Achieving a Legitimate Aim
In any event, the ET had also found that the dismissal was a proportionate means of achieving a legitimate objective, namely maintaining appropriate standards of conduct in the workplace.
As that finding was not challenged on appeal, the discrimination claim would have failed regardless.
Given those conclusions, the EAT held that there was no basis to overturn the ET’s rejection of the unfair dismissal claim.
The appeal was dismissed.
Q&A: Disability Discrimination and Unfair Dismissal
What is discrimination arising from disability?
Under Section 15 of the Equality Act 2010, this occurs where an employee is treated unfavourably because of something arising in consequence of their disability, unless the treatment can be justified.
Does all misconduct by a disabled employee arise from their disability?
No. Tribunals must consider evidence carefully. Misconduct will not automatically be treated as arising from disability.
What role does occupational health evidence play?
Occupational health reports can be crucial in determining whether conduct is linked to a medical condition, but they are assessed alongside all other evidence.
Can dismissal still be lawful even if conduct is linked to disability?
Yes, if the employer can show that the dismissal was a proportionate means of achieving a legitimate aim.
What lessons does this case offer employers?
It highlights the importance of fair procedures, appropriate medical evidence, and clear reasoning when dealing with misconduct involving disabled employees.
Contact Us
Managing disciplinary issues involving disability requires careful handling to minimise legal risk. Our specialist Employment Law solicitors advise employers and employees on unfair dismissal claims, discrimination disputes and workplace investigations.
If you need advice on managing disciplinary processes or defending tribunal claims, contact Willett & Co Solicitors today for expert guidance.