The law says it is discriminatory to treat a worker unfavourably (for instance, by dismissing them) because of “something arising in consequence of” their disability. In City of York Council v Grosset, the Court of Appeal held that it is still discrimination even if the employer was unaware of a link between the disability and the worker’s misconduct.
Mr Grosset, a teacher, suffered from cystic fibrosis. The school had made various reasonable adjustments but when a new head teacher took over, he was not told about them. He then increased Mr Grosset’s workload, putting him under severe stress.
While suffering from these high stress levels, Mr Grosset showed an 18-rated horror film to a class of 15-year olds without obtaining approval from the school or the pupils' parents. Mr Grosset agreed that it had been inappropriate to show it, but that he had done so because of the high levels of stress he was under as a consequence of his disability. The school summarily dismissed him for gross misconduct.
Mr Grosset claimed unfair dismissal and discrimination arising in consequence of his disability under section 15 of the Equality Act 2010.
Section 15(1) states that:
a) it is discrimination for an employer to treat a worker unfavourably because of “something arising in consequence of” their disability, and
b) the employer cannot show that the treatment was “a proportionate means of achieving a legitimate aim”.
Tribunal and EAT decisions
The tribunal dismissed his unfair dismissal claim, holding that it was within the range of reasonable responses for the school to reject his argument that he had shown the film because he was so stressed out.
However, it agreed with him that the school was in breach of its duty to make reasonable adjustments for his disability and that it had treated him unfavourably in consequence of his disability. Pointing out that he had never previously made a similar error, the tribunal said it was clear that he had shown the film when suffering from high levels of stress arising from his disability. As section 15 did not require an immediate causative link with that disability, the tribunal held that the error of judgment for which Mr Grosset was dismissed arose “in consequence of [that] disability”.
Although the school had the legitimate aim of protecting children and maintaining disciplinary standards, the tribunal held that, given the circumstances, a formal written warning would have achieved that aim as there was no real risk of him repeating the error, as long as the undue levels of stress were removed. On that basis, the tribunal found that his dismissal was not justified under section 15(1)(b) and was an act of disability-related discrimination.
The EAT upheld the tribunal’s decisions and the Council appealed on the basis that, under section 15, the school had to know that there was a link between Mr Grosset’s decision to show the film (the relevant “something”) and his disability.
Decision of Court of Appeal
Dismissing the appeal, the Court held that section 15(1)(a) did not require the school to be aware of the link between the decision to show the film and his disability. Instead, it consisted only of two questions. Firstly, did the employer treat the worker unfavourably because of an (identified) "something"; and (ii) did that "something" arise in consequence of the worker’s disability? The first issue involved an examination of the employer’s frame of mind, whereas the second was an objective matter, which, in this case, the tribunal found to be proven.
With regard to the issue of justification, the Court held that the tribunal’s assessment contained no error of law in terms of finding that dismissal was disproportionate in the circumstances.
This case is a particularly useful one for disabled employees. The Court of Appeal has set down the proper interpretation of the legislation. Stating that it is not necessary that the employer knows that the ‘something’ arises from the disability is of enormous use to claimants when considering whether a claim for disability discrimination arises. It also seems more unlikely that an employer would be able to justify the discriminatory act if they have failed to make reasonable adjustments.