“For the section 15 complaint, the Claimant alleges that the comments are something arising from his disability. He argues that quite apart from communication difficulties being a feature of his disability, in addition, many of the comments are borne out of frustration of the Respondent’s failures (as he sees it) to make reasonable adjustments and the Respondent’s disability related harassment and/or discrimination and/or victimisation.”
“We highlight for the Claimant’s benefit that we are about to discuss some of the comments and the contents in the remainder of these reasons.”
“On the hypothesis that the words used (for some of the examples) was something arising from disability, we have to consider whether the discriminatory effect on the Claimant of dismissing him is a proportionate means of achieving a legitimate aim.”
“Our overall assessment (for the purposes of considering proportionality) is that the words used are very strong examples of foul language and abusiveness towards colleagues, and a profound lack of respect for the employer.”
“Overall, our decision is that it is [typo as] proportionate to dismiss an employee for making these remarks in order to pursue the legitimate aims 2, 6 and 7 above, notwithstanding the fact that some of the remarks arose in consequence of disability. The legitimate aims 1, 3, 4 and 5, while important, would not in themselves justify dismissal without further attempt at warning and persuasion.”
“36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues: (i) did A treat to B unfavourably because of an (identified) “something”? and (ii) did that “something” arise in consequence of B’s disability? 37. The first issue involves an examination of A’s state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A’s attitude to the relevant “something”… 38. The second issue is an objective matter, whether there is a causal link between B’s disability and the relevant “something”…”
“His disability was an effective cause of that indignation and so of his conduct, as was, of course, his personality trait or characteristic of shortness of temper, which did not arise out of his disability. On the Employment Tribunal’s own analysis of the facts, this was a case in which there were two causes of conduct that gave rise to the dismissal, one of which arose out of his disability. In concluding otherwise, the Employment Tribunal erred in law. In consequence, it did not go on to answer the question whether the Respondent had shown that the unfavourable treatment to which the Claimant had been subjected, dismissal, was a proportionate means of achieving the legitimate aim…”
“(b) and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
“I accept that the word “necessary”…is to be qualified by the word “reasonably”
“As this court has recognised.., a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind… the respect due to the conclusions of the fact-finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation.”
“For the section 15 complaint, the Claimant alleges that the comments are something arising from his disability. He argues that quite apart from communication difficulties being a feature of his disability, in addition, many of the comments are borne out of frustration of the Respondent’s failures (as he sees it) to make reasonable adjustments and the Respondent’s disability related harassment and/or discrimination and/or victimisation.”