The Court of Appeal recently had to decide whether it had been an act of disability discrimination for an employer to dismiss an employee for  misconduct which it did not know at the time, was related to the employee’s disability?

Facts of the case

In City of York Council v Grosset, Mr Grosset was Head of English at a York secondary school and had cystic fibrosis. He had a reasonable adjustment agreement with his employer that allowed him to juggle the commitments of work while carefully managing his condition. After a new head teacher joined the school, Mr Grosset’s workload increased dramatically. He became stressed, increasingly unwell and was signed off from work.

Before being signed off, Mr Grosset had shown a class of 15 year old students an 18-rated horror film as part of a class discussion. The head teacher discovered this after Mr Grosset had gone off sick, and launched a disciplinary investigation.

Mr Grosset claimed his error of judgement in showing the film was caused by stress, and that his disability and deteriorating health added to that stress. His claim was rejected and he was dismissed.

Legal background

The claim of discrimination arising from disability is set out in section 15 of the Equality Act 2010. It provides 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.

However, an employer has a defence to a section 15 claim if it can show that it did not know, and could not reasonably have been expected to know, that the person had the disability.

Tribunal decision

Mr Grosset brought claims for both unfair dismissal and disability discrimination.

An employment tribunal ruled that the employer had failed to make reasonable adjustments, and agreed there was a causal link between Mr Grosset’s disability and his error of judgement. The dismissal was ruled a disproportionate response and therefore unlawful disability discrimination.

Separately, the tribunal, by a majority, dismissed his claim of unfair dismissal  on the basis that the findings made by the school during the disciplinary investigation and the sanction imposed fell within the range of reasonable responses open to it as an employer.

The decision was later confirmed at Employment Appeal Tribunal (EAT).

The Court of Appeal’s decision

The Court of Appeal upheld the decisions of both the employment tribunal and EAT. The Court confirmed that the employer was liable for discrimination arising from disability, even though they did not know, at the time of the dismissal that the misconduct was linked to Mr Grosset’s disability.

Conclusion

The Court of Appeal’s decision shows how disability discrimination can arise even if an employer isn’t aware of a link between an employee’s actions and their disability. This puts employers in a difficult position as they could act properly – as in this case, by carrying out a fair disciplinary process but, still incur liability for discrimination because they haven’t made the link between a disabled person’s actions and their condition. Employers therefore need to proceed with extreme caution when disciplining a disabled employee and think very carefully about whether their actions could be related to their disability. If this is a possibility then employers need to make sure their proposed course of action is proportionate.

How can we help you?

If you are facing a disciplinary or would just like to know more about your employment rights in the workplace as a disabled person, talk to our employment law specialists today. We’ll help you figure out the best way forward for you.

 

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