The claimant was black and had a stammer. He was dismissed during his probationary period principally because of a “sharp and sudden decline in his attitude and behaviour”. The tribunal held his stammer was a disability within the DDA 1995, but his claim failed because the tribunal found he was not dismissed for a reason related to his disability. The EAT upheld the decision. The claimant did make the point that other staff might wrongly interpret effects of his stammer as aggressive behaviour, but it is not clear whether that was relevant to the behaviour complained of.
Employment Appeal Tribunal, 2004. Full decision: bailii.org.
Facts
The claimant was black and had a stammer. As with all new recruits at the Office for National Statistics, he entered a probationary period. However he was dismissed from his employment on the basis that he had not met the standards expected of him during his probationary service.
His tribunal claims included disability discrimination, failure to make reasonable adjustments, and race discrimination. The employer resisted all the claims.
The Employment Tribunal decided at a preliminary hearing that, because of his stammer, the claimant was at all material times a person with a disability for the purposes of the Disability Discrimination Act 1995 (DDA). However the Employment Tribunal subsequently dismissed all the discrimination complaints.
Held: the EAT upheld the tribunal decision, so his claims failed.
Employment Appeal Tribunal (EAT) decision
The essential question for the Employment Tribunal under the DDA was whether he was dismissed for a reason related to his disability. This was a question of fact for the Employment Tribunal to determine (Clark v Novacold). The Employment Tribunal clearly found, as a fact, that he was not dismissed for a reason related to his disability.
The Employment Tribunal found that what principally lay behind the dismissal was a sharp and sudden decline in his attitude and behaviour. The EAT said it was significant that the claimant’s representative made no attempt to suggest that the claimant’s unacceptable conduct was in any way linked to his disability, bearing in mind that that conduct was the major factor troubling the employer.
The EAT said it was important to bear in mind that in his original claim the claimant “was complaining of being bullied by his employers and that it was their attitude to him which resulted in stress, to which he alleged he was more susceptible than others because of his stammer”. The claimant’s representative argued his stress was a manifestation of his stammer. The EAT agreed that if there is a recognised manifestation of a disability, dismissal could be related to the disability through the recognised manifestation. However, the EAT was satisfied that the tribunal was in no way persuaded that that was the situation with the claimant, and that any suggested link of that nature was far too tenuous.
The final ground of appeal turned on the claimant’s submission that the Employment Tribunal was in error in saying that “the [claimant] gave no evidence that the appearance of the [claimant’s] stammer or any consequential gestures appeared intimidating or gave the appearance that he was harassing any member of staff.” The EAT said this was taking a sentence in isolation. The Employment Tribunal was there referring to evidence of specific incidents, and the EAT was satisfied that the Employment Tribunal did not overlook that during meetings preceding his dismissal the claimant was making the point that other staff might wrongly interpret an effect of a stammer as being aggressive behaviour. The Employment Tribunal could not however determine there being any failure to make adjustments consequent upon those matters.
My comments
The EAT decision is not really interesting from a legal point of view. However I find the last paragraph above particularly interesting, as regards effects of stammering being misinterpreted as aggressive behaviour. This has been a theme in various other dismissal cases concerning stammering: see Losing one’s job>Misconduct, such as sounding “aggressive” and the comments there.
We don’t have the Employment Tribunal decision so it is not clear why the tribunal found that there wasn’t sufficient link between the allegedly aggressive behaviour and effects of the stammer, so that the dismissal was not for a reason related to his disability. The claimant may not have alleged there was such a link; the EAT says the claimant’s representative made no attempt to suggest that his unacceptable conduct was in any way linked to his disability. The claimant may not have given evidence that the specific incidents complained of as unacceptable were misinterpreted due to effects of his stammer. His comments may just have been concern that he might be mistakenly perceived as aggressive in the disciplinary or appeal hearings.
