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Disability discrimination: Does an employer need to know that the employee's disability caused the misconduct in order to be liable for a "discrimination arising from disability" claim?

22 May 2018
Glass enclave reception area of a corporate building
In the case of City of York Council v Grosset the Court of Appeal has upheld the decision of the Employment Tribunal and the Employment Appeal Tribunal ("EAT"). The Court found that where an employer dismisses an employee for misconduct, the employer may be liable for discrimination arising from disability where that misconduct is caused by the disability, even though the employer did not know the disability caused the misconduct.

Background

Discrimination arising from disability occurs under section 15 of the Equality Act 2010 ("EqA") where both:

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

There is a defence under section 15(2) of the EqA where the employer can show that it did not know (and could not reasonably be expected to know) the employee was disabled.

Facts

Mr Grosset was employed as Head of English at Joseph Rowntree School ("School"). Mr Grosset suffers from cystic fibrosis and the School was aware of this and accepted he was disabled for the purpose of the EqA. Mr Grosset's self-management of the condition entailed a gruelling three hour daily exercise regime.

There was a change in the Head Teacher at the School which led to an increased workload for Mr Grosset. This in turn led to Mr Grosset becoming increasingly stressed which exacerbated his cystic fibrosis.

Mr Grosset was teaching 15 and 16 year olds English and showed them a certificate 18 rated film, Halloween. Upon discovery of this by the School, Mr Grosset was suspended and later dismissed for gross misconduct. During the disciplinary process Mr Grosset accepted the showing of the film was an error of judgment but maintained that this arose directly from the stress he was suffering due to his increased workload.

Mr Grosset brought an unfair dismissal claim and a discrimination arising from disability claim ("Section 15 Claim"). The unfair dismissal claim was dismissed by the Employment Tribunal but the Section 15 Claim was successful. The Council appealed to the EAT with regard to the Section 15 Claim but again were unsuccessful. The Council appealed to the Court of Appeal.

Court of Appeal

The Court of Appeal considered the two-stage test set out in Basildon & Thurrock NHS Foundation Trust v Weerasinghe:

  • Did the claimant's disability cause, have the consequence of, or result in "something"?
  • Did the employer treat the claimant unfavourably because of that "something"?

The "something" in this case was the showing of the film Halloween. The next question is whether the Council treated Mr Grosset unfavourably because of that "something"? Yes it did, held the Court, it dismissed Mr Grosset.

The second stage is an objective matter, considering whether there is a causal link between the employee's disability and the relevant "something". The original Employment Tribunal clearly found there was such a link.

There is no further requirement for the employer to have knowledge of the link between the "something" and the employee's disability.

The Court of Appeal found that the Employment Tribunal and the EAT had made a lawful assessment with regard to objective justification. However, although there were legitimate aims of safeguarding children and maintaining disciplinary standards, the Council's actions were not considered to be proportionate. The test is objective, allowing the Tribunal to makes its own assessment. In addition it was noted that had the School made further reasonable adjustments the incident was unlikely to have occurred.

The Court of Appeal dismissed the appeal.

Comment 

This is an important decision for employers to note. It highlights that it is not for an employer to assess whether there is a link between an employee's actions and their disability. The "no knowledge" defence is limited to circumstances where the employer did not know (and could not reasonably be expected to know) the employee was disabled. An employer's defence of a lack of knowledge of possible outcomes of a disability will simply not stand up.

Employers should ensure they seek medical evidence to try and gauge whether there is a link between the disability and the action. Although this evidence will not assist an employer when faced with a Section 15 Claim, it may help avoid such a claim in the first place. If there is a link, employers can make an informed decision about any action they take. Employers may also wish to give further consideration to any reasonable adjustments they could make.

It is also worth remembering that there is the defence of justification. Although the employer was not successful in this case, an employer that can show that its actions were a proportionate means of achieving a legitimate aim should be able to defend such a claim.

Further Reading

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