Discrimination Arising from Disability: A cautionary tale for employers

Fairness of Dismissal and Knowledge of a Protected Disclosure

In the case of City of York Council v Grosset the Court of Appeal considered whether an employer was liable for discrimination arising from disability when it dismissed a disabled employee for gross misconduct without knowing that the misconduct arose from the employee’s disability. 

The Court of Appeal held that the employer’s knowledge (or lack thereof) of the causal link between the disability and the misconduct was irrelevant and therefore the employer was liable.

This case serves as a reminder to employers to exercise caution when dealing with disciplinary matters involving employees who are, or could be deemed to be, disabled under the Equality Act 2010 (the “EqA 2010”).

Facts

Mr Grosset worked at a school operated by the City of York Council as a teacher and the Head of English.

Throughout his employment Mr Grosset suffered from Cystic Fibrosis (which the Council were aware of and accepted constituted a disability under the EqA 2010). As part of the self-management of his condition Mr Grosset had to undertake an intense exercise regime of up to 3 hours per day in order to clear his lungs.

In the autumn term of 2013 the head teacher put in place measures designed to improve the performance of the English Department. This resulted in a significant increase in workload for Mr Grosset which he found difficult to cope with. His condition meant he was unable to cope with sudden changes in workload because, due to his rigorous exercise regime, he was unable to manage the extra work by working in his own time. This increased pressure caused Mr Grosset stress which, in turn, caused his health to suffer.

In October 2013 Mr Grosset complained to the head teacher about the increased workload and specifically informed him about his medical condition. Nothing was done to alleviate the situation.

In November 2018, Mr Grosset took two lessons of 15 and 16 year olds in which he showed them an 18-rated film.

Mr Grosset was suspended and invited to a disciplinary meeting. During the disciplinary process Mr Grosset maintained that showing the film was a momentary error of judgment caused by the stress he was under which had been contributed to by his cystic fibrosis.

The disciplinary panel did not accept this explanation. The medical evidence available to it at the time did not suggest a link between Mr Grosset’s misconduct and his disability. He was dismissed for gross misconduct.

Mr Grosset brought, amongst other claims, a claim for discrimination arising from disability in the Employment Tribunal.

He won his claim in the Employment Tribunal and in the Employment Appeal Tribunal.  It was found on the basis of medical evidence that the fact that Mr Grosset had shown the film was linked to his disability and that dismissing him was unfavourable treatment.

Employers will not be liable for discrimination arising from disability if they can show that the treatment is a proportionate means of achieving a legitimate aim. Whilst the Employment Tribunal found that the Council had legitimate aims of protecting children and ensuring that disciplinary standards are maintained, it held that a formal written warning would have been sufficient to achieve those legitimate aims.

The Council appealed to the Court of Appeal (CA).

Court of Appeal

The appeal largely focused on the issue of whether it was necessary for the Council to have knowledge of the fact that Mr Grosset’s behaviour in showing the film arose in consequence of his disability in order to be liable for discrimination arising from disability.

The CA held that the EqA 2010 did not require such knowledge and held that there were two distinct questions to be considered:

  1. Whether the employer treated the employee unfavourably because of an identified “something”; and
  2. Whether that “something” arose in consequence of the employee’s disability.

In relation to point 1 - The Council dismissed Mr Grosset because he showed the film. The dismissal was the unfavourable treatment and the showing of the film was the “something”.

In relation to point 2 – The Employment Tribunal had found Mr Grosset showed the film due to the high level of stress he was suffering and that stress arose from the effect of his disability.

The CA held that the second question was an objective question and involved considering whether there was, objectively, a causal link between the “something” and the disability. The employer’s knowledge of that causal link is, therefore, irrelevant.  

The CA, however, noted that it would be a defence to such a claim for the employer to show that it did not know, or could not reasonably have been expected to know that the employee was disabled under the EqA 2010.

Comment

This case will be concerning to employers as it shows that an employer can be liable for discrimination arising from disability even where it does not know that an employee’s actions are linked to their disability.

What is even more concerning is that this can still be the case even where an employer has sought medical evidence, and concluded on the basis of that evidence, that there is no link between the employee’s actions and the disability. Whilst employers will always be well advised to seek medical evidence when considering disciplinary action in relation to a disabled employee they should also be aware that they may not be able to rely on it to escape liability.

In this regard it is worth noting the CA’s comment in its judgment that “the risk of unfavourable treatment because of something arising in consequence of disability is cast on to the defendant rather than the claimant. If the defendant does not know that the claimant is disabled, he has a defence. But if he does know that there is a disability he would be wise to look into the matter more carefully before taking unfavourable action”.

Therefore, where an employer knows that an employee is disabled, efforts may be better focused on considering whether any proposed disciplinary action is a proportionate means of achieving a legitimate aim so that a defence under the EqA 2010 can be established if necessary.

 

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