Discrimination 'arising from' disability and unfair dismissal

City of York Council v Grosset

Where an employer dismisses a disabled employee for misconduct caused by his or her disability, the dismissal can amount to unfavourable treatment because of something ‘arising from disability’ - even if the employer did not know that the disability caused the misconduct.

The law

Section 15 (1) of the Equality Act 2010 specifies that a person (A) discriminates against a disabled person (B) if:

  • A treats B unfavourably because of something arising in consequence of B’s disability, and
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim

Background

Mr Grosset was a teacher who suffered from cystic fibrosis (CF). Adjustments had been made to accommodate his disability, but these had not been properly recorded. When a new headteacher took over Mr Grosset was placed under increased stress. He complained about unreasonable deadlines and workloads and mentioned his CF when requesting a reduction in work. His workload was however not reduced. Subsequently, he showed an 18 rated film to a class of 15-year-old pupils. At the disciplinary hearing Mr Grosset accepted that showing the film was inappropriate. He argued however that it was an error of judgement arising from stress linked to his disability. His employer didn’t accept this and dismissed him for gross misconduct.

Mr Grosset brought claims for unfair dismissal and disability discrimination (under s 15). A tribunal dismissed the unfair dismissal claim finding that the school’s decision to dismiss fell within the band of reasonable responses from the information available to it at the time. But, said the tribunal, Mr Grosset had been unlawfully discriminated against. At the time of dismissal, the school was unaware of the fact that Mr Grosset’s misconduct was linked to his disability. However, from the evidence available to the tribunal it was possible to conclude that there was such a link. While accepting that the school had legitimate aims (e.g. safeguarding children), the tribunal held that it had not shown that dismissal was a proportionate means of achieving those aims. The school’s appeal to the EAT was unsuccessful and the case proceeded to the Court of Appeal.

Court of Appeal decision

The appeal was dismissed.

The school argued that it should only have been liable if it was aware when dismissing Mr Grosset that his conduct arose in consequence of his disability. Not so said the Court of Appeal following its analysis of how s. 15 operates. The section involves two issues:

  1. Did the employer treat the employee unfavourably because of a ‘something’?
  2. Did that ‘something’ arise in consequence of the employee's disability?

The second issue is entirely objective, and it does not matter what the employer knew. Here the tribunal was entitled to find that the causal link was established – Mr Grosset showed the film because of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work.

The Court of Appeal also upheld the tribunal’s decision on justification – the second limb of s. 15. There was no inconsistency between the tribunal’s rejection of the unfair dismissal claim and its upholding of the discrimination claim – the test of reasonableness in unfair dismissal cases allows a significant latitude of judgement for the employer, whereas the test under s. 15 is objective, requiring the tribunal to make its own assessment. The tribunal was entitled to take into account that, if the school had made reasonable adjustments by reducing Mr Grosset’s work pressure, he would not have been subjected to the same level of stress and the incident would have been unlikely to occur.

Link to judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1105.html

Comment

Knowledge of disability is a tricky question in itself as the employer must either know or ought reasonably to know after reasonable investigation, if an employee is disabled. If you are aware or ought reasonably to be aware that an employee has a disability, and are dismissing for misconduct, investigate carefully to see if the disability has the potential for being linked to the conduct issues in question. This may involve commissioning an expert medical investigation.

The sums involved here were significant – the damages awarded in Mr Grosset’s favour were £646,000.