CAN DISMISSAL AMOUNT TO DISCRIMINATION WHERE THE EMPLOYER DID NOT KNOW THE DISABILITY WAS CONNECTED TO THE MISCONDUCT?
In City of York Council v Grosset the Court of Appeal considered whether discrimination arising from disability had occurred where the employer had dismissed a disabled employee not knowing the misconduct arose from their disability.
Mr Grosset was a teacher and Head of English at a school operated by City of York Council (the Council). He suffered from cystic fibrosis, which the School was aware of. As a consequence of his condition he spent up to three hours per day in a punishing regime of physical exercise to clear his lungs.
After a change in Head Teacher, new standards and targets were brought in. This resulted in an increase in Mr Grosset’s workload. As a result of his condition, he struggled to cope with the additional demands placed on him. He became stressed which in turn exacerbated his condition.
During this time he showed an 18-rated Halloween film to 15 and 16 year olds, without prior approval of either School or parents.
He was disciplined then dismissed for gross misconduct. Mr Grosset accepted it was wrong to show the film, but asserted that this was a momentary error of judgment, caused by the level of stress he was under, which was linked to his disability. The School did not accept this.
Mr Grosset brought claims for unfair dismissal and disability discrimination. The tribunal held that Mr Grosset had not been unfairly dismissed. However, it considered that he had suffered discrimination arising from disability. This occurs where an employer treats an employee unfavourably because of something arising in consequence of an employee’s disability and the employer cannot justify this.
The Council appealed to the Employment Appeal Tribunal (EAT), who dismissed the Council’s appeal.
The Council appealed to the Court of Appeal.
The Court of Appeal (CA) dismissed the appeal. When looking at discrimination arising from disability the test is:
• whether the employer treated the employee unfavourably because of an identified ‘something’, and
• whether that ‘something’ arose in consequence of the employee’s disability.
The ‘something’ in this case was the showing of the film, which had led to Mr Grosset’s dismissal. The CA said it was not necessary for the Council to have been aware of whether the misconduct arose from the disability.
Knowledge is only relevant to the defence where an employer did not know, and could not reasonably be expected to know, that the employee was disabled. Here the Council were aware that Mr Grosset was disabled.
Dismissal is an act of unfavourable treatment; provided a claimant can show a causal connection between the unfavourable treatment and disability, this will amount to discrimination arising in consequence of disability, unless the unfavourable treatment can be justified.
The Council had failed to objectively justify the unfavourable treatment as it had failed to make reasonable adjustments to manage Mr Grosset’s workload – if it had Mr Grosset would not have been subjected to the same level of stress and it would have been extremely unlikely that the film would have been shown.
What does this mean for employers?
This case highlights that employers can be liable for discrimination arising from disability even where they have concluded there is no link between an employee’s actions and their disability.
If an employer is considering disciplining a disabled employee, they should always consider obtaining medical evidence on whether the employee’s actions could in any way be a consequence of their disability. The employer in this case did take that step, although ultimately lost. The employer may still be able to defend a claim if it can show that its treatment was justifiable. This can be quite a high hurdle and there may be cases where an employer will be forced to decide between giving the employee the benefit of the doubt that their unacceptable behaviour was a consequence of their disability, or risk a successful claim against them.