Employment & Pensions Blog: Tribunal Rules Dismissal of Disabled Employee Over Offensive Online Messages was Objectively Justified - Duncan v Fujitsu Services

The Employment Appeal Tribunal (EAT) ruled that an employer was justified in dismissing a disabled employee for making abusive and inappropriate comments, despite the fact that the comments arose (at least in part) because of his disabilities.

Background

Mr Duncan started working for Fujitsu Services Ltd (Fujitsu) in September 2017 initially as a Graduate Trainee, before becoming a Software Developer until April 2021, when he was dismissed for gross misconduct. Fujitsu was aware from the outset of his employment that Mr Duncan was disabled by virtue of attention deficit hyperactivity disorder (ADHD) and autistic spectrum disorder (ASD).

Fujitsu has an internal communication system called Slack that its employees can use to message each other. It came to Fujitsu’s attention that Mr Duncan had used the system to send offensive and abusive messages about colleagues. Including using a four-letter expletive to describe his colleagues on more than one occasion, and using extremely aggressive threats of violence.

Fujitsu initiated a disciplinary process. Mr Duncan declined to attend the disciplinary hearing as he was not well enough to do so, but he instead made written submissions stating that there was a link between his disabilities and his use of offensive language. Mr Duncan was sent 12 follow-up questions, to which he replied that he would “appreciate no further questions my disabilities [sic]”.

On 16 April 2021, Mr Duncan was dismissed without notice. Whilst acknowledging that there was a potential link between his disabilities and the offensive behaviour, Fujitsu found that Mr Duncan’s messages showed “deliberate repeated hateful verbal abuse” and concluded that dismissal was appropriate in the circumstances.

Employment Tribunal

Mr Duncan brought claims for unfair dismissal, disability discrimination and harassment. The Employment Tribunal rejected his unfair dismissal claim on the basis that not all of Mr Duncan’s comments did arise as a result of his ADHD and/or ASD. For those comments that did arise as a result of his disabilities, Fujitsu’s decision to terminate his employment was a proportionate way of achieving the following aims:

• To prevent the use of used threatening language about managers and colleagues.
• To prevent harassment and other behaviour that leads to a hostile work environment.
• To prevent threats of violence against colleagues (expressed to other colleagues but directed repeatedly and forcefully at colleagues and managers) in any work-related context.

Mr Duncan appealed the unfair dismissal finding to the EAT.

The EAT

Mr Duncan’s grounds of appeal were twofold:

• He experiences “involuntary loss of emotional control” and that he “does not understand social rules”, which the Employment Tribunal failed to consider.
• The Employment Tribunal had failed to consider whether there were other options short of dismissal which would have reduced the discriminatory impact on him.

To Mr Duncan’s first ground of appeal - The EAT found that Mr Duncan did not argue in his original claim that he suffered from an “involuntary loss of emotional control” despite having obtained legal advice, and he didn’t argue it during the 18 day hearing in the Employment Tribunal.

To his second ground of appeal - The EAT agreed that Fujitsu had legitimate aims and its decision to terminate Mr Duncan was a proportionate means of achieving those aims. Given the severity and repeated nature of the offensive language, the dismissal was justified.

Mr Duncan’s appeal was therefore dismissed.

Comment

When considering disciplinary action, employers need to be mindful of possible disability discrimination risks where an employee’s conduct might be influenced by their condition. In this case, Fujitsu was able to justify their decision to dismiss because of the severity of Mr Duncan’s conduct, and because they had legitimate aims they were trying to protect. Other employers in slightly different circumstances could find themselves in hot water if they do not take into account medical evidence regarding the disabilities, and consider that against the severity of the conduct the employee is being accused of.

If you require further guidance on conducting disciplinaries or disability discrimination, please contact a member of our Employment Team.