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Disability discrimination: an important landmark decision

employmentlaw@work / 17 May 2018

The Court of Appeal has upheld the EAT’s earlier decision that, where a disabled employee is dismissed for gross misconduct caused by the disability, the dismissal can be unfavourable treatment because of something arising in consequence of a disability (under s.15 Equality Act 2010 (the “Act”)) even if the employer did not know that the disability caused the misconduct.

ISSUE

In City of York Council v Grosset, Mr Grosset, a teacher, suffered from cystic fibrosis.  Reasonable adjustments were put in place but were not properly documented.  When a new headteacher was appointed, the claimant’s workload increased and he suffered from severe stress.  Whilst suffering from stress, he showed an 18-rated film to a class of 15-year-olds without prior approval and was dismissed for gross misconduct.

Mr Grosset brought claims for unfair dismissal and disability discrimination in the Employment Tribunal.  In relation to his disability discrimination claim, he argued, under s.15 of the Act, that his dismissal amounted to unfavourable treatment because of something arising in consequence of his disability (the “s.15 Claim”).  The Employment Tribunal found there was no unfair dismissal, but upheld the s.15 Claim.  New medical evidence, which had not been available to the employer at the time of dismissal, showed there was a link between the medical condition and the misconduct, and this was enough for the s.15 Claim to succeed, even where the employer was not aware of the link.

Going on to look at the Council’s defence of objective justification, the Employment Tribunal agreed that the school had legitimate aims in terms of safeguarding children and maintaining disciplinary standards but held that the dismissal was not a proportionate means of achieving those aims.

The Council’s appeal to the EAT was unsuccessful and it appealed further to the Court of Appeal.

KEY DATES

The Court of Appeal judgment was issued on 15 May 2018.

IMPACT

The Court of Appeal dismissed the appeal.  It held that the s.15 Claim involved two causative issues:

  1. Did the employer treat the employee unfavourably because of an identified “something” (in this case, the showing of the film)?  This requires examination of the decision makers state of mind; and
  2. Did that “something” arise in consequence of the employee’s disability?  This is an objective test.

In relation to the second limb, the Court of Appeal held that Mr Grosset showed the film as a result of being subject to very high stress, which arose from the effect of his disability, and this, in itself, satisfied the test.  There was no further requirement under s.15 of the Act that an employer must be aware, when choosing to subject an employee to unfavourable treatment, that the relevant “something” arises in consequence of the employee’s disability.

ACTION

This is a difficult case for employers because it clarifies that an employer can be found liable for a discriminatory act in circumstances where, at the time that the disciplinary action was taken, there was no clear medical evidence linking the misconduct and the medical condition.

However, it highlights the importance of, if an employer is aware of an underlying medical condition, giving careful consideration as to whether that may be affecting an employee’s conduct and taking that into account, even in the absence of clear medical evidence.

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