The case was supported by the Equality Commission for Northern Ireland.
Karen Corry, senior HR consultant at Baker Tilly Mooney Moore, told HR magazine that this case highlighted the legal requirement for disability inclusion at work.
She said: “This case underlines the importance of ensuring that people with disabilities are not unfairly treated or discriminated against in the workplace.
“The Disability Discrimination Act 1995 obliges employers to ensure that people with disabilities are not discriminated against, either within the recruitment process or once they are in the workplace.”
She added that employers must also follow a fair process when dismissing employees.
Corry continued: “Employers must adhere to fair dismissal procedures in any situation, with employees given adequate notice and an opportunity to discuss their performance.
“It is unreasonable to outright dismiss an employee in most cases and in the case of an employee with a disability employers should take extra care to support the employee, and dismissal should be a last resort.”
Read more: New disability guidance for managers
McKerr applied for a job at Mak’s Plaice while still a student. He disclosed on his application form that he lives with autism and he was given the job.
A few months after starting (January 2023) McKerr was told it was a quiet time for the shop. They said he might be given more hours in March.
The next week McKerr got a text message that asked him to pick up his final pay cheque and return his uniform.
McKerr said: “I thought I was doing well. I didn’t know there were any problems, nobody told me. I didn’t know I had been dismissed.
“I was really upset when I realised I wouldn’t be working there anymore and saw they were recruiting new people. I wasn’t given the chance to explain my autism and to improve.”
Laura Binnie, legal director at BDB Pitmans, explained that employers are obliged to put adjustments in place for employees with disabilities under the Equality Act.
Speaking to HR magazine, she said: “Protection from discrimination is a ‘day one’ right under the Equality Act 2010.
"As the employer here was clearly on notice of the employee’s autism (likely to be a disability), that should have prompted a further dialogue with him to enable them to better understand Oisín’s condition and any measures of support that could be put in place.
“Without doing this, an employer is exposed to a claim for disability discrimination, including a failure to make reasonable adjustments.”
Read more: Withdrawn job offer costs firm £17,000 for disability discrimination
Raoul Parekh, partner at GQ Littler, noted that employers should engage employees in open conversations about their progress before resorting to dismissal, especially those with disabilities.
He told HR magazine: “It’s notable that the employee’s disclosure of his autism in the application process was not met with similar frankness from the employer when difficulties arose.
“There is nothing to stop an employer raising performance or conduct issues with any employee, whether or not they have a disability.
“Of course, where those issues arise from an employee’s disability, additional obligations for reasonable adjustments or otherwise might apply; but here, the employer and employee were not able even to explore whether those might have been possible.”
Corry stated that employers could protect themselves from discrimination claims by ensuring the workplace is inclusive of people with disabilities.
She advised: “In order to protect themselves against similar cases, employers should implement clear policies and procedures that promote equal opportunities and provide disability and inclusion awareness training for their managers and staff, ensuring that they are adequately trained.
“The creation of an inclusive working environment and regular reviews to address potentially discriminatory practices and evolving legal obligations are key to the accommodation of employees with disabilities."
