A member of staff was being brought through informal performance capability but didn’t engage fully in the process. He began to show threatening, intimidating and abusive behaviour towards the manager. At this stage he was pending diagnosis of Asperger’s syndrome (this diagnosis has since been confirmed). Where do we stand in relation to formal disciplinary? His senior manager is under the view of gross misconduct with the likelihood of a formal warning or dismissal. HR is aware of the duty of care to the employee and would be worried about tribunal action if he were dismissed.

The Employment Equality Acts 1998 – 2011 (the “Acts”) confer substantial protection on employees with disabilities. The definition of “disability” in the Acts is broadly interpreted, and would encompass a person with Asperger’s Syndrome. On this basis, the Company should be cognisant that the employee may seek to assert that he is being discriminated against on grounds of his disability should he be subject to any disciplinary procedure or action to his detriment.

However, employees with disabilities are not protected from dismissal if they are not willing or fully capable of performing the role in question, subject to the requirement to provide reasonable accommodation to facilitate the