The decision in Risby v London Borough of Waltham Forest provides an important reminder to employers about considering all eventualities when conducting disciplinary proceedings. It makes clear that even if something is only loosely linked to an employee’s misconduct, it should still be properly explored and taken into account when deciding an employee’s guilt (or innocence) and a suitable sanction.


Mr Risby had been employed by London Borough of Waltham Forest for 23 years. He is a paraplegic and therefore disabled under the Equality Act 2010. He was summarily dismissed for gross misconduct and brought claims of unfair dismissal and discrimination arising from a disability.

Mr Risby was dismissed for a racist outburst towards a junior colleague. It had been prompted by Mr Risby learning that a change of training venue meant his needs as a wheelchair user would not be met. The language Mr Risby used was entirely inappropriate and so naturally his employer took action. Mr Risby’s internal appeal, which focussed on the severity of the sanction, was unsuccessful despite Mr Risby’s assurance there would be no repeat of the behaviour.

Tribunal findings

Although Mr Risby tried to assert late in the proceedings that he had the further disability of depression, the tribunal held that his shortness of temper was not related to any disability; it was simply a personality trait. Although the tribunal found in favour of the council, the Employment Appeal Tribunal (EAT) has now directed that they need to look at the facts again.

Why was this considered necesary, when dismissing an employee for a racist outburst toward another colleague would seem to be a reasonable step for an employer to take?

The key is the link between Mr Risby’s conduct and his disability. You could be forgiven for saying that there is no direct link between paraplegia and racism, but the EAT found that there were two causes of Mr Risby’s conduct:

  • his short temper; and
  • his indignation at the decision to hold a training event at a venue he could not access. Had Mr Risby not been disabled then he would not have been so angered by that decision, hence the link to his disability, albeit a loose one.

These two causes of misconduct led to Mr Risby’s dismissal.  As the tribunal failed to consider whether the decision taken by the council was nevertheless reasonable or could be justified, both the discrimination and the unfair dismissal claims were remitted back for a further hearing before the employment tribunal.


The decision of the EAT suggests that it was too simplistic for the tribunal to decide that Mr Risby’s misconduct was unrelated to his disability. The case seems to loosen the causal link between disability and “something arising in consequence of the disability” – Mr Risby’s short temper was unrelated to his disability, but the cause of his loss of temper was his employer’s failure to accommodate his needs as a disabled person. The EAT considered this to be sufficient for the test of discrimination arising from a disability to be met.

It is still open to the council to argue that, even if it is considered to have treated Mr Risby unfavourably because of something arising in consequence of his disability, its actions were justified. However, a tribunal might consider a more proportionate sanction to have been a final written warning given Mr Risby’s particular circumstances and it is notable that the appeal officer said in his evidence that there was nothing Mr Risby could have said to have changed the outcome. If Mr Risby’s misconduct arose out of his disability, an alternative to summary dismissal would have been an option and therefore the view that Mr Risby could not have said anything to change the outcome may not be one open to a reasonable employer.

The key point for employers is to consider what might be underlying an employee’s misconduct and whether any such underlying cause might link to something like a disability, where extra care needs to be taken.

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