Jack Clarke was employed by Marks & Spencer between July 2015 and July 2022 at stores in Oxfordshire, and was hired as part of a scheme implemented to get people with disabilities into work.
A colleague complained about his conduct after he leaned against her back and side one evening in June 2022, which she felt was sexual and made her uncomfortable and frightened.
Read more: Disabled employees still struggling to get adjustments
Clarke was arrested, but later released and the case was dealt with by means of a community resolution order.
Clarke said that leaning on people for comfort was a common trait of his when he was in distress, due to his autism, and something he does with his parents.
At the time he said he was upset due to management failing to implement adjustments which had been agreed to manage stress.
The tribunal heard that his need to take breaks when overwhelmed and follow a consistent schedule was not adhered to after management changes in December 2021.
Following an internal investigation he was sacked for gross misconduct.
However, a tribunal upheld claims of unfair dismissal and discrimination arising from disability. His claims of indirect discrimination and failure to make reasonable adjustments were upheld in part.
Warren Moores, senior associate at law firm SAS Daniels Solicitors, said if an incident could have been influenced by an employee’s disability this needs to be taken into account in any internal investigation.
Speaking to HR magazine he said: “In a misconduct situation where an employee’s behaviour may have been caused by their disability, the employer should take this into account or it could lead to claims of discrimination and unfair dismissal.
“Investigations like this often require medical input as to the extent to which any disability may have influenced the employee’s action because neither the employer nor employee are normally medically trained to make such an assessment.”
Read more: Saying 'I'm done' is not a resignation, rules tribunal
However, Moores added that if the employee’s actions were disability related, action can still be taken.
He said: “It may indeed be reasonable to sanction an employee for their conduct in certain circumstances.
“Take an example of an employee who due to their disability has symptoms of a short temper and anger. If the employee is aware of their behaviour but fails to take reasonable steps to manage it and throws a chair at someone, it may still be reasonable to discipline them.”
Moores also said that sometimes an employer can legally dismiss an employee because although it is agreed their behaviour is entirely related to their disability, it means they are incapable of doing the job.
A spokesperson for M&S said: "We are committed to providing an inclusive place of work for everyone.
"We also have a zero-tolerance approach to inappropriate conduct of any kind, and when such conduct takes place, we will act to ensure we are meeting our duty to provide a safe and welcoming work place for all of our colleagues.”