McGraw v London Ambulance Service NHS Trust ET/3301865/11
Date added: 19 April 2012
Equality Act 2010 | disability discrimination | discrimination arising from disability
This case is a useful early example, along with Williams v Ystrad Mynach College ET/1600019/11, of how employment tribunals are approaching the new concept of "discrimination arising from disability" under the Equality Act 2010. The claimant fell at the first hurdle by failing to demonstrate a link between his disability and his treatment by the employer.
A good example of a potential claim under s.15 of the Equality Act 2010 is where an employee with mental health issues argues that disciplinary action against him or her for bad behaviour was discriminatory.
However, the claimant in this situation would have to show that there was a sufficient connection between his or her actions and the disability, for example by presenting medical evidence that medication caused the behaviour that led to the disciplinary action.
In any event, an employer will have a defence if it can demonstrate that the disciplinary action was a proportionate means of achieving a legitimate aim.
For example, the employer could show that its legitimate aim was to deal with behaviour that it deemed unacceptable and that it used proportionate means by offering support and counselling where possible, and took disciplinary action when that became the only option.
Mr McGraw was employed by London Ambulance Service NHS Trust as a paramedic. He declared in 2005 that he had been abusing Entonox. Entonox, which is used as an anesthetic, is carried in ambulances for use by patients and kept in secure locations on the NHS trust's sites. In 2005, Mr McGraw was given support and counselling for Entonox abuse.
In October 2008, suspicions were raised that Mr McGraw's "erratic behaviour" meant that he was abusing Entonox again. Mr McGraw denied that this was the case and he was not disciplined.
On 29 October 2010, Mr McGraw, whose attendance was poor and under review, was signed off sick with "depression anxiety". On 20 November 2010, while he was still on sick leave, Mr McGraw visited Richmond ambulance station at 2am. Mr Potter, the ambulance operations manager, knew that Mr McGraw was signed off sick and challenged him about what he was doing there. Mr Potter later reported that Mr McGraw appeared to be "heavily intoxicated" and was "visibly disoriented, unsteady on his feet and slurring his speech".
During the formal investigation that followed, Mr Potter gave evidence that his suspicions had been aroused when he noticed that the fire exit was open, even though it was a cold night. Mr Potter said that Mr Ironmonger and Ms Coutts, the two members of staff who were at the station during Mr McGraw's impromptu visit, had appeared "sheepish" when asked what was going on. Mr Potter had then seen Mr McGraw, who looked unsteady on his feet, through a window. When Mr Potter went outside to challenge him, Mr McGraw had driven off in his car, forcing Mr Potter to jump away from the vehicle to avoid having his feet run over.
Because they were Mr McGraw's colleagues, Mr Ironmonger and Ms Coutts were reluctant to put their version of events on record, but both said that they had seen him carrying a canister of Entonox. Mr Ironmonger said that there was a view among Richmond staff that "Entonox had been diminishing at a more rapid rate lately than [one] might expect".
When Mr McGraw was interviewed, his recall of the night in question was "very patchy". He said that he had gone to the station to pick up his phone charger and laptop and could not recall holding a canister of Entonox. He claimed that his behaviour had been caused by his taking too much prescribed medication.
It was not possible to track the movements of Entonox cylinders at the Richmond station because all on-duty crews are allowed to go to any station to exchange empty cylinders for full ones. Therefore, it could not be verified whether or not any Entonox was missing from the Richmond station.
It was concluded at the disciplinary hearing on 12 April 2011 that Mr McGraw had:
- gone to Richmond ambulance station on the night in question while signed off work sick;
- attended the station with the intention of misappropriating Entonox;
- abused Entonox while at the station in contravention of the trust's alcohol, drugs and solvent misuse policy; and
- driven away from the station when challenged by Mr Potter.
Mr McGraw was dismissed for gross misconduct, despite his 19 years' service and previous good disciplinary record. The trust took the decision, upheld on appeal, on the basis that:
- it could not tolerate the misuse of substances meant for the treatment of patients;
- he had made several "conscious decisions" that night;
- he was a paramedic with easy access to drugs; and
- he was required to provide a "remote and autonomous" service to the public.
Mr McGraw's claims of unfair dismissal and direct disability discrimination were rejected by the employment tribunal. In addition, Mr McGraw claimed "discrimination arising from disability", a new concept that was introduced on 1 October 2010 by s.15 of the Equality Act 2010. This section makes it unlawful for an employer to treat an employee unfavourably because of something "arising in consequence of" his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability. An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim.
The employment tribunal recognised that, because there had not been any case law on discrimination arising from disability, it had to be guided by the Employment statutory code of practice (PDF format, 1.09MB) (on the EHRC website).
The employment tribunal gave "considerable thought" to whether or not the trust's treatment of Mr McGraw was because of something "arising in consequence of" his disability. The tribunal asked whether or not his attempt to steal Entonox arose from his depression. In other words, was the attempted theft a result, effect or outcome of his depression? The tribunal could find no evidence of a link between the depression and attempted theft, or a link between the effects of any medication that Mr McGraw was taking and his dismissal. The evidence before the tribunal was that taking the prescribed medication was likely to cause Mr McGraw respiratory depression and make him sleepy, not make him prone to committing theft.
The tribunal concluded that, even if it was wrong about this, it would have held that, in these circumstances, Mr McGraw's dismissal was a proportionate means of achieving a legitimate aim.