What happens when misconduct and potential discrimination cross paths?
HR Connect has previously spoken about the case against Greg Wallace in relation to sexual harassment. As you no doubt will be aware, Greg Wallace was dismissed from his position at the BBC after an investigation revealed examples of poor behaviour dating back more than 10 years, including numerous women accusing him of inappropriate sexual behaviour, such as groping and touching.
This recent case has been particularly important to consider in relation to the legal duty to prevent sexual harassment in the workplace which came into force last year, and HR Connect and in conjunction with Legal Connect, has produced numerous communication around how this case further highlights the importance of the introduction of the legal duty, the need for employers to meet the duty, and to have in place, amongst other things, relevant documentation and training for your staff on sexual harassment in order to meet your legal obligations.
If you are not familiar with this duty, we encourage you to urgently look at the resources we have available for our clients, including a recorded webinar, a resource pack and training for your members of staff, senior leadership team and your governors, especially given undertaking training is one of the reasonable steps employers should be taking to meet this duty.
Notably the duty to prevent sexual harassment will also be enhanced by the Employment Rights Bill, which will require employers to take all reasonable steps to prevent sexual harassment in the workplace, as well as the introduction of the protection of third party harassment, including the prevention of sexual harassment of your staff members by third parties.
In addition to the above this case has now also highlighted a further area within the workplace and that is when allegations of discipline meet discrimination considerations. This has arisen on the basis Greg Wallace has stated that he has a diagnosis of autism and it is his position that his condition has had a role in his sexualised, inappropriate behaviour and that the BBC, as his employer, had failed to investigate his disability or protect him from what he says he now realises was a dangerous environment. He also states that his neurodiversity, was suspected and discussed by colleagues across countless seasons of MasterChef.
This case highlights the growing area of complexity for employers, arising when an employee’s misconduct may be linked to a mental health condition or neurodivergence such as autism or ADHD.
As previous tribunal decisions have shown, whilst employers must of course tread carefully in these circumstances, it is also important that employees are aware that poor behaviour is not always excused by a disability.
Legal considerations
Under the Equality Act 2010, a mental health condition including neurodivergence conditions can amount to a disability. This is because under the Equality Act, the definition of a disability is such that an individual has a physical or mental impairment which has a substantial and long-term effect on their ability to undertake normal daily activities.
Meeting the legal definition gives those workers who have a mental health or neurodivergence condition, important rights and protections within the workplace, and these can include:
- the right to reasonable adjustments
- the right not to be discriminated against
- the right not to be treated unfairly for a reason related to their disability (unless such treatment can be objectively justified)
- right not to be subject to harassment related to their disability.
So what is the position if an employee’s misconduct is related to a potential disability?
As touched upon above under the Equality Act there are different forms or types of discrimination, and there are 2 types that are unique to the protected characteristic of disability. They are the failure to make reasonable adjustments and discrimination arising from disability. A claim for discrimination arising from disability occurs where an individual has suffered unfavourable treatment in consequence of something arising from their disability, and the employer had knowledge or should reasonably have known of their disability. So this will therefore come into consideration where an employee’s conduct may be related to or arise from their disability. Any action which may give rise to discrimination arising from disability can potentially be justified, if the decision can be shown as being a proportionate way of achieving a legitimate aim.
We have set out a couple of cases where this has been considered in practice.
Mr T Duncan and Fujitsu Services Limited, 2025.
Mr. Duncan had ADHD and ASD (Autistic Spectrum Disorder) which Fujitsu was aware of. As part of a grievance process message logs were provided, which included messages between Mr Duncan and his colleagues that contained inappropriate, offensive and threatening language. As a result, Fujitsu initiated disciplinary proceedings against Mr Duncan. Mr. Duncan stated that his behaviours were linked to his disabilities, however Mr Duncan refused to fully cooperate with the disciplinary process and also refused certain medical reports from being disclosed. He was dismissed for gross misconduct.
Mr Duncan pursued claims for unfair dismissal and disability discrimination/harassment under the Equality Act 2010, including claims that certain abusive language/behaviour arose from his disabilities.
Whilst the Employment Tribunal found that some of Mr Duncan’s comments did arise from his disabilities and accepted that Fujitsu knew about his disabilities, the Employment Tribunal held that the dismissal was justified (proportionate) even for those comments, because Fujitsu had legitimate aims to protect colleagues (e.g. preventing harassment, threats, hostile working environment).
Mr J Muir and AstraZeneca UK Ltd.
Dr Muir was dismissed in 2020 for conduct matters. He suffered from anxiety and depression, which the employer conceded qualified as disabilities. Informal complaints had been made about Dr Muir’s tone and conduct whilst he was under pressure and the company dismissed him for gross misconduct. The Employment Tribunal considered whether the conduct and the employer’s response (including the disciplinary process) appropriately took into account Dr Muir’s disabilities. In this case the Employment Tribunal actually found that his employer had failed to manage the situation properly, they did not speak to him informally, they did not get occupational health input or offer support. In light of that, the tribunal felt that given his long service and clean disciplinary record, his dismissal was not a proportionate response.
These cases serve as a useful reminder that whilst an individual’s disability does not automatically mean immunity and employees with disabilities can still be held accountable for their misconduct, that it is extremely important for employers to investigate fairly, obtain medical evidence, provide support/adjustments (for example whether adjustments such as communication, coaching or mediation could prevent issues from escalating), consider alternatives and ensure proper notice and procedural fairness.
This can be a very complex area and in addition to guidance and support from your HR Consultants, we have put together a HR and Legal Master class series on bespoke training for you and your schools and Trusts which will include training sessions on absence management, how to address disabilities within the workplace and the legal implications of that, and also looking at this from the element of misconduct and how to manage disciplinary and potential discrimination when you may be faced with that crossroad.
If you would like any further information in relation to this upcoming series, please do not hesitate to register via the link below.
.png)
.png)