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Dealing With “Attitude” At Work, Part 2 – Justifying Disciplinary Action (UK)

In my post last week, I considered the extent of an employer’s duty to make reasonable adjustments to accommodate an employee whose difficult workplace attitude is alleged to have its origins in a disability. However, there is another angle to this question which the employer must also bear in mind.

Section 15 Equality Act 2010 make it unlawful for an employer to treat an employee unfavourably “because of something arising in consequence of” his disability, unless it can show that treatment to be justified. In other words, one step removed from direct less favourable treatment because of the disability itself; instead, such treatment on the basis of something stemming from it. There are untold cases around the required degree of knowledge of the disability and of causation of the “something”, but they pretty much all depend on their own facts (this one is a particularly extreme example [here]). For present purposes, let us assume that the employer accepts (or at least cannot disprove) that the employee’s ratty attitude towards his colleagues is a product of a disability.

Then we turn to the example in paragraph 5.9 of the Equality and Human Rights Commission Code of Practice to see section 15 in action. It refers to an employee who suffers great pain due to her cancer and who, as a result of that pain, is one day rude to her boss. Normally that would be a disciplinary matter, but the question is whether that less favourable treatment could be justified in the light of her disability. You search the Code in vain for a clear answer on this because it will inevitably depend on the facts so here are some considerations for that decision when it comes to the employee with the seeming “attitude problem”.

  1. What form does the “attitude” take – is he overtly aggressive or just sullen and withdrawn? This will be relevant because the latter will generally be easier for other employees to work around, and the imperative to act at any particular level of disciplinary robustness is therefore reduced.

  2. How often does it happen? A constant daily grating on others is a very different employment relations proposition from a one-off or very occasional outburst.

  3. Who does it affect, and how? Is there a risk (or hard evidence) that having to deal with that employee is causing complaints from staff or clients?

  4. Is unchecked snappiness to his bosses a risk to the maintaining of their managerial authority? This may intersect with how far the disabled employee is willing to let the employer explain the condition and its symptoms to other staff – that risk will be much reduced if those other staff recognise that there is a good reason for the boss letting low-level stuff go unremarked upon.

  5. The employee’s own conduct in the matter – is the poor attitude seen by the employee as an unintentional side-effect of his condition, to be acknowledged as such and apologised for afterwards as appropriate, or as an entitlement? Is he undergoing any treatment or using any coping strategies advised? Has he let you say enough to his colleagues to lessen the immediately alienating impact of his outward demeanour?

  6. Have you made such reasonable adjustments as you can? If you know that your employee finds some specific aspect of his work particularly triggering of his condition and therefore of his “attitude”, is there anything you could reasonably do about it? If there is but you don’t, it will be that much harder to justify disciplining the employee when his behaviours offend in future.

  7. Last, what have you said to the employee himself about it? You might think that telling him that his behaviours are upsetting/annoying others would somehow be rubbing salt in the wound, but, so long as it is done in a factual rather than accusatory manner, it is still the right thing to do. First, the employee may be so bound up in his condition that he has genuinely lost some degree of self-awareness. There may be some “discretionary” element to his conduct which he has thereby let slip unnecessarily. Second, it may help the employer defend any future claim by the employee if it can show that those colleagues’ conduct was not deliberate but a natural and instinctive reaction to his own behaviour towards them.

As I said in relation to section 20 last week, there has to be some “give” for a disabled employee which you might not extend to others who behaved the same way. But ultimately it will not be hard for the employer to show the maintenance of a civil and harmonious workplace to be a legitimate aim. Where the disabled employee’s “attitude” poses any material threat to that, the employer will be entitled to act upon it.

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David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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