Disability-related discrimination: no threshold of materiality if disability is a reason for the treatment

In Bodis v Lindfield Christian Care Home Ltd, the EAT considered the common issue of the impact of a disability on a disciplinary process.

Ms Bodis worked at a care home that experienced a spate of unusual vandalism incidents such as paper towels being stuck down toilets, documents appearing to be deliberately soaked in water, notices and posters having annotations added, and photographs of management being defaced by the addition of facial hair.

The employer invited a number of employees, including the Claimant, to investigation meetings. Staff were not offered the option of being represented or given advance notice of the topic to be discussed. 

Ms Bodin had anxiety and depression that amounted to a disability at the time, but the Investigating Manager did not know this. The Investigating Manager concluded that the Claimant was the likely perpetrator and she was invited to a disciplinary hearing for gross misconduct. Ms Bodin was dismissed. She did not ask for the disciplinary hearing to be adjourned and said that she was fit to participate in the hearing. She did not appeal against the decision to dismiss.

The Tribunal found that conducting a disciplinary process and dismissing Ms Bodin were not acts of disability discrimination because there was no unfavourable treatment because of something arising in consequence of disability.

The relevant findings of the Tribunal were:

• The manner in which Ms Bodin answered questions at the investigation hearing was taken into account by the Investigating Manager in concluding that Ms Bodin was the most likely perpetrator of vandalism. Her answers were brief and not to the point. At times, she laughed inappropriately and smiled when she answered questions.
• This manner of answering was due to Ms Bodin’s disability.
• Had the Investigating Manager been aware that Ms Bodin was suffering from a mental health challenge, he would not have taken her manner of answering questions as part of his reasoning for proceeding to a disciplinary hearing (i.e. he would have discounted her manner in the meeting)
• The Investigating Manager’s report cited the following reasons for concluding that it was appropriate to proceed to a disciplinary hearing:
  
  • The similarity of handwriting between Ms Bodin’s writing and the graffiti
  • Ms Bodin being present at the care home when the incidents occurred
  • She was seen acting suspiciously in the vicinity on one of the occasions
  • Her brief and seemingly evasive answering of questions

The Tribunal considered that whilst Ms Bodin’s demeanour during the interview was identified in the list as a factor that the Investigating Manager took into account, it was trivial and was not “the effective cause” of his decision to escalate to a disciplinary hearing. 

The EAT disagreed with the Tribunal. It considered that there was no triviality threshold as to whether something arose from a disability. They found that even if something is a minor component of an employer’s reasoning, it is still a component and therefore still potentially grounds for a complaint of discrimination arising from a disability.

Ultimately, Ms Bodin’s claim here still failed as the Tribunal found that even if the employer did take into account a disability-related factor in deciding to escalate to a disciplinary hearing, the employer’s treatment of Ms Bodin was justified as a proportionate means of achieving a legitimate aim.

This case does highlight two important issues for employers:

• For disability-related discrimination to occur, an employer need not be aware that the employee has a disability.  The issue is whether:
  • There was less favourable treatment
  • There was a disability
  • The reason for the less favourable treatment was “something arising in consequence of the disability”

In this case therefore, even though the Investigating Manager did not know of the disability, his reaction to Ms Bodin’s manner during the investigation meeting was something arising in consequence of her disability because her manner related to her disability

• Even a minor contributory factor can amount to “something arising in consequence of disability”