Employers deciding whether to instigate a disciplinary process after an investigation, or determining the level of disciplinary sanction, should consider carefully whether their reasons for taking these steps could have been influenced by behaviour during the process which is connected with the employee's disability.
For example, certain mental impairments such as anxiety or depression could mean that an employee behaves more defensively or evasively in interviews. If this is at least part of the reason for taking a particular disciplinary step (and the employer had actual or constructive knowledge of the disability), the employer could be liable for a 'discrimination arising from disability' claim (subject to a justification defence).
The EAT in Bodis v Lindfield Christian Care Home ruled that the thing arising from the disability need only be one of a number of effective causes for the employer's actions, and a claim may be made out even if it is only a minor component of the reason for the treatment.
Employers will need to consider the impact of an employee's disability both on their misconduct and their demeanour during the process, and it may be prudent to obtain medical advice on this.
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