Speaker #0Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Duncan and Fujitsu Services Limited, in which the Employment Appeal Tribunal was asked to consider whether an employer had discriminated against a disabled employee by dismissing him for misconduct, when that misconduct was, at least in part, connected to the employee's disabilities. In this case, a software developer who was disabled by way of autism and ADHD brought three grievances against his employer. all of which were dismissed. In the course of the third grievance, the developer had disclosed a number of group chat messages from the employer's workplace communication platform Slack, which had taken place between himself and two other colleagues and which contained inappropriate and offensive messages directed towards other colleagues. A number of the messages were sent during working hours and they were all sent over Slack. The employer suspended the developer pending a disciplinary investigation into the Slack communications. Prior to the disciplinary hearing, the developer sent a number of documents detailing his mitigating circumstances, which along with an occupational health report were considered by the investigating officer. The software developer refused to answer any further inquiries about his disabilities and refused the disclosure of a psychologist report. The investigating officer found that the allegations of inappropriate and offensive language were proven and the software developer was summarily dismissed. He brought claims, including for discrimination arising in consequence of his disability, arguing that his comments in the Slack communications were something arising from his disability. He asserted that quite apart from communication difficulties being a feature of his disability, many of the comments were born out of frustration as to what he considered the employer's failure to make reasonable adjustments and what he considered to be his employer's harassment, discrimination or victimisation of him. An employment tribunal found that some comments were, and others were not, something arising from the developer's disability. The tribunal then went on to consider whether the discriminatory effect of the employer dismissing the developer was justified as a proportionate means of achieving the employer's legitimate aims of a. preventing the use of threatening language about managers and colleagues b. preventing harassment leading to a hostile environment and c. preventing threats of violence against colleagues in any work-related context. Dismissing the claims, the tribunal held that the words used were very strong examples of foul language and abusiveness towards colleagues, which demonstrated a profound lack of respect for the employer. In addition, the developer had made the comments during working hours and he should have been aware of the possibility that they might come to the employer's attention, and he was aware that some of the comments could be classified as misconduct. Therefore, Dismissal had been proportionate in the circumstances. On appeal, the developer asserted that the Tribunal should have considered whether the use of the language itself arose directly from his disability, and the question for the Employment Appeal Tribunal was whether he had advanced his case before the Tribunal of such a link. The Employment Appeal Tribunal found that he had not. The developer's case before the Tribunal was one of an indirect link between the abusive language and his disability. namely an indignation caused by the employer's treatment of him regarding reasonable adjustments. Had the developer asserted a direct link, the tribunal would have dealt with that issue. In addition, there was very little evidence in support of a direct link, including no medical evidence, and the abusive language was only raised in the Slack communications and not outside and in face-to-face meetings with the employer in stressful situations, including when reasonable adjustments had been raised. The developer further argued before the Employment Appeal Tribunal that the Tribunal had insufficiently analysed whether his dismissal was a proportionate means of achieving a legitimate aim, including that the Tribunal had not considered whether options short of dismissal would have been more appropriate. Also dismissing this ground, the Employment Appeal Tribunal found that the Tribunal had concluded dismissal would not have been justified in pursuit of three other legitimate aims put forward by the employer without further attempt at warning and persuasion. Therefore, the tribunal had engaged with the question of lesser sanctions. Significantly, the tribunal had found that the developer had attempted to justify his remarks to the investigating officer, suggesting that they were not abusive and threatening, but there was no evidence that he had provided any reassurance that his offensive remarks would not be repeated. The Employment Appeal Tribunal dismissed the appeal, and held that the tribunal's overall assessment was that it was proportionate to dismiss the developer for these remarks. notwithstanding that some arose in consequence of his disability was a permissible conclusion. 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