Explicit social media post was not regarded as being in consequence of the claimant’s disability and the dismissal was regarded as fair.

The claimant worked as a postman for the respondent from 2004 until his dismissal on the grounds of gross misconduct. The claimant was also disabled, within the meaning of the Equality Act 2010 based upon stress, anxiety and depression.

The issue arose in October 2019 when the claimant refused to commence his delivery round. The claimant was regarded as becoming abusive towards others and swearing. The claimant raised issues about how a colleague had been treated and was in hospital suffering from alcoholism. When the manager was walking away from the claimant the claimant stated that he felt like killing himself and the response was that if threats like that continued to be made then the police would have to be called. The claimant did not carry out his deliveries – he continued to stand at the gate but eventually left the premises and returned home.

He subsequently posted on Facebook using expletives to refer to the staff at the claimant’s depot. This led to the claimant being suspended. Following investigation and disciplinary process he was dismissed in February 2020.

The claimant brought a claim for unfair dismissal citing that the dismissal was due to his actions arising because of his disability. The claimant argued that he had a meltdown and that he was not in control when the events occurred. As a result, he stated that they should have been taken as arising from his disability. He further argued that his referral to Occupational Health was flawed on the basis that the respondent did not include the statement made by the claimant that he felt like killing himself.

The Tribunal rejected it at first instance leading to the appeal to the EAT. The EAT dismissed the appeal stating that it was a matter of fact as to whether the actions were something arising in consequence from his disability. The claimant had the responsibility for demonstrating evidence that it was in consequence and the Tribunal accepted the medical evidence that was provided which was the Occupational Health report. The EAT agreed with this position.

This case relates to whether something is in consequence of a recognised disability and this can be more troublesome when it relates to the claimant alleging that it was a meltdown relating to their disability. However, the Tribunal and the EAT make it clear that it is for the claimant to demonstrate evidence to that effect – without that then the medical evidence should be given its due weight which did not demonstrate that it was entirely linked to the disability and as a result the dismissal was fair.

You can read the case in full here.