A claim may be brought that the employer is liable for disability discrimination due to unfavourable treatment of an employee because of something arising in consequence of their disability. The phrase “in consequence of” indicates that there has to be link with the disability but as was highlighted in the case of Mr Martin James Scott v Kenton Schools Academy Trust this does not require that the claimant establish the disability actually caused the conduct in question.
Mr Scott, a teacher, had handed out notes to assist pupils who were sitting an examination under controlled conditions. Mr Scott claimed that a colleague, who had since resigned, had asked him to hand out the notes and whilst he knew it was wrong he had lacked the confidence to refuse as at the time he had been suffering with mental health issues. The employer considered the medical evidence but did not find that the misconduct was explained by his mental health condition.
It was held that a Tribunal decision dismissing the claims could not be upheld on appeal as it had looked for a direct causation between the disability and the conduct and all that was required was a relatively loose link in order to satisfy the “in consequence test”. The alternative finding that the treatment would have been justified in any event also could not stand as there had been no balance applied in relation to proportionality when assessing whether the imposition of a lesser sanction would suffice.