Thread by @JasonBraier

1/ Morgan v Bucks CC: EAT upholds ET finding objective justification in dismissing an autistic social worker for handing out gifts to a foster child (against policy) where her disab made it more likely she'd repeat the offence, with consequential safeguarding concerns. #ukemplaw

2/ M was a senior social worker. Bucks CC policy precluded social workers handing child clients gifts save with senior manager permission. M breached that rule, as well as writing inappropriate reports about the foster carers (setting out her personal views on their actions).

3/ M was (among other impairments) autistic. In part she blamed her autism for her actions, though declined an OH assessment to look into this. In deciding to dismiss her, the dismissing officer was concerned she didn't accept fault & would repeat the breach.

4/ She brought claims including for unfair dismissal & s.15 discrim arising from disability. The ET found she was fairly dismissed. Although the dismissal in part resulted from actions in which her autism played a part, the ET found dismissal objectively justified.

5/ That ET decision was based in large part on the safeguarding concerns resulting from giving gifts to children under social worker care, & concern that M's approach to her actions were such that the employer was concerned she'd repeat the breach.

6/ M appealed, among other things, on the basis of misapplication of objective justification, suggesting it couldn't succeed where the proportionality arguments rely on the something arising from the disability.

7/ The EAT disagreed. The mere fact that M's conduct was influenced by her disability didn't preclude the ET from finding justification to be made out.

8/ The ET had found for M on 1 point, namely that she'd been subject to harassment by a comment in the dismissal raising concern about her inappropriately masking her disability to operate as a neuro-typical person.

9/ Bucks had argued, inter alia, that it was a 1-off comment & didn't reach the s.26(4) threshold for a finding that it had the proscribed effect. Reliance was placed on Tunstall for that proposition.

10/ However, the EAT found it reasonable for M to find the comment had the proscribed effect, & distinguished Tunstall on the basis of a distinction between a singular off-the-cuff remark as against a considered observation in a formal letter. The s.26 threshold was made out.

11/ There were other grounds of appeal, but determined very much on a factual basis & hence not earth-shattering enough to find their way into this thread.

You can read the entire judgment (including those less exciting grounds) here: assets.publishing.service.gov.uk/media/635be920…