Although it is unlawful to discriminate against someone because of “something arising from” their disability, employers can rely on a defence of justification in certain circumstances. In Morgan v Buckinghamshire Council, the Employment Appeal Tribunal (EAT) held that the council could rely on a legitimate aim that social workers must not breach the boundaries of behaviour that it set down for them.
Basic facts
Ms Morgan worked as a supervising social worker in the council’s fostering team. Although she suffered from a number of conditions including autism spectrum disorder, the council only became aware of her disability in February 2018. Up until that point, she had successfully “masked” her condition by way of various coping techniques.
She was dismissed in September 2019 for giving a child in her care unauthorised gifts in late 2017 and September 2018; for writing an inappropriate case note; and for failing to follow the instructions of her line manager from February 2018 onwards. At her appeal, she argued that gift giving was common and that her behaviour had been influenced by her autism. She was asked at that point to agree to an Occupational Health (OH) referral, but she declined.
She brought claims of unfair dismissal and unfavourable treatment “because of something arising in consequence” of her disability under section 15(1)(a) of the Equality Act 2010 and harassment following a comment by the appeal officer that she had “chosen” to withhold her autism from her employer through “masking”, potentially putting vulnerable children at risk.
Tribunal decision
Rejecting her claim of unfair dismissal, the tribunal found that the council had reasonable grounds for concluding that Ms Morgan’s conduct had been inappropriate for a senior social worker as she knew that she needed the authority of her manager before giving a gift and that dismissal was in the range of “reasonable responses of a reasonable employer”.
The tribunal also rejected her disability claim under section 15(1)(b) of the Equality Act on the basis that dismissal was “a proportionate means of achieving a legitimate aim” (ensuring that social workers did not breach the boundaries of behaviour set by the council) and was, therefore, justified. However, it upheld one complaint of harassment.
Ms Morgan appealed the tribunal’s decisions on unfair dismissal and discrimination, and the council cross-appealed the harassment decision.
EAT decision
Dismissing Ms Morgan’s appeal, the EAT held that the tribunal was right to conclude that the council had reasonably decided that she had breached professional boundaries and, crucially, it could not be sure that she would not behave in the same way again. It had also been reasonable for the council to conclude that not only was Ms Morgan aware that she needed authority from her manager before giving a gift, she also knew that she could be dismissed for failing to get his approval.
As for her claim of disability discrimination, the tribunal was entitled to take into consideration the view of the dismissing officer – namely, that her conduct had not been influenced by her autism. Given the emphasis she had placed on the effect of her autism at both the appeal hearing and the tribunal, the tribunal was entitled to take certain facts into account. For instance, the fact that she had refused to agree to an OH referral. These considerations had not had the effect of wrongly “penalising” her for her autism.
Finally, the EAT dismissed the council’s cross appeal against the finding of harassment holding that it was reasonable for Ms Morgan to take the view that the statement by the appeal officer that she had “chosen” to mask her autism violated her dignity.