D-BRIEF – Employment & Pensions Blog: Disability Discrimination

In McQueen v General Optical Council the EAT considered whether an employee’s inappropriate conduct in the workplace was something arising from his disability and therefore protected under Equality Legislation.

Mr McQueen was employed by the General Optical Council as a Registration Officer. After incidents of aggressive behaviour/a loss of temper in the workplace, he was subjected to disciplinary action. Mr McQueen had dyslexia, Asperger’s Syndrome, neurodiversity, and hearing loss on his left-side and his employer arranged for appointments with occupational health, a psychologist and a psychiatrist. The medical advice was that Mr McQueen displayed aggressive mannerisms and raised his voice in stressful situations and certain adjustments were recommended. Notwithstanding the adjustments, Mr McQueen’s conduct in the workplace continued to be inappropriate. As a result of disciplinary action taken against him, Mr McQueen lodged various Employment Tribunal claims including a claim for discrimination because of something arising from disability.

Employment Tribunal Decision

The Employment Tribunal (ET) needed to establish if Mr McQueen’s incidents of aggressive behaviour arose from his disabilities. Under section 15 of the Equality Act 2010 “discrimination arising from disability” occurs where A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. The ET came to the decision that the aggressive behaviour and short temper displayed by Mr McQueen did not arise as a consequence of his disability under the Equality Act 2010 and therefore dismissed his claim.

Employment Appeal Tribunal Decision

Mr McQueen appealed the ET’s decision to the Employment Appeal Tribunal (EAT) arguing that the ET were too strict when applying the test of causation when considering the effects of his disabilities. The EAT did consider the judgment issued by the ET to be difficult to understand, however they did not agree that the ET had erred in the law or principle when making its decision.


Previous case law has demonstrated that there only needs to be a loose connection between an employee’s disability and the unfavourable treatment to succeed in a claim for discrimination arising from disability. It is interesting to note that whilst a loss of temper was not found to arise from disability in this case, it has in previous case law which is a reminder that each case will be fact specific. This case highlights the difficulties faced by an employer when dealing with employees who suffer from various different disabilities with varying symptoms. In such cases it will often be difficult for employers to identify if behaviours arise in consequence of disability and medical advice should always be sought to understand the impact of a particular condition on a particular employee.

If you require further assistance or support on disability in the workplace please contact a member of our Employment Team.

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