Francesca Jus-Burke Senior Associate
Must an employer know that misconduct arose from a disability?
The Court of Appeal in City of York Council v Grosset , considered whether, following the dismissal of a disabled employee, discrimination arising from disability had occurred despite the employer not knowing that the misconduct arose from their disability.
Section 15(1) of the Equality Act 2010 (EqA) 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. Section 15(1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Mr Grosset was a teacher who suffered from cystic fibrosis. Reasonable adjustments were agreed to accommodate his disability on employment. No proper record was kept of the disability and reasonable adjustments, so when a new head teacher was appointed at the school he was unaware of the disability.
Mr Grosset's workload subsequently increased and as a result of his condition, he struggled to cope with additional demands placed on him. Mr Grosset suffered stress, which exacerbated his cystic fibrosis. During this period, he showed a class of 15 year old children an 18-rated horror film, Halloween. Disciplinary charges followed, which resulted in his summary dismissal for gross misconduct. During disciplinary proceedings, Mr Grosset accepted that showing the film was inappropriate and maintained that it happened as a result of an error of judgment on his part arising from the high level of stress he was under at the time as a consequence of his disability.
The tribunal held that Mr Grosset had not been unfairly dismissed as the Council's decision was within the range of reasonable responses available to it.
However, it considered that Mr Grosset had suffered discrimination arising from disability. Although the medical evidence available to the Council at the time of dismissal did not suggest a link between Mr Grosset's misconduct and his disability, medical evidence available by the time of the tribunal hearing demonstrated otherwise.
Notably, Mr Grosset had never made a comparable error and there had been no prior concerns about his safeguarding responsibilities. The Tribunal found that it was more likely than not that Mr Grosset had made an error of judgment as a result of the stress he was under, showing this film was not an error he would otherwise have made, and that the stress was exacerbated and therefore arose from his disability.
Employment Appeal Tribunal decision
The EAT dismissed the Council's appeal. It held that the tribunal was correct to find that the inappropriate showing of the film (the “something” under section 15(1)(a) EqA) arose in consequence of the Mr Grosset's disability (his impaired mental state). His act of misconduct resulted from his disability and the Council had treated him unfavourably by dismissing him because of that.
The EAT further held that the tribunal was not required to decide whether the Council knew that there was a link between the misconduct and Mr Grosset's disability. Knowledge is only relevant to whether the employer knows that the employee is disabled.
Court of Appeal decision
The Court rejected the Council's argument that it was not liable under section 15(1)(a) unless Mr Grosset could show that it had appreciated that his behaviour was a consequence of his disability.
Section 15(1)(a) is a two-stage test. The first issue involves examining the employer's state of mind to establish whether the unfavourable treatment occurred because of the employer's attitude to the relevant "something". The Council had dismissed Mr Grosset because he showed the film. That was the relevant "something".
The second issue is objective, whether there is a causal link between the disability and the "something". Mr Grosset showed the film as a result of the exceptionally high stress he was under, which arose from the effect of his disability under increased work demands.
There was no further requirement that an employer had to be aware, when choosing to subject an employee to unfavourable treatment, that the "something" arose because of their disability. Such a requirement would make the defence in section 15(2) redundant.
This case illustrates that employers can be liable for discrimination arising from disability even where they have reasonably concluded that there is no link between an employee's actions and their disability.
The decision shows that knowledge is only relevant to the defence under section 15(2). It is not relevant that the employer did not know that the behaviour or "something" in question arose in consequence of the disability.
Employers considering disciplining a disabled employee should always consider obtaining medical evidence as to whether the employee's actions could in any way be a consequence of their disability.
They should also have regard to Chapter 5 of the Equality and Human Rights Commission’s Employment Statutory Code of Practice.
The risk of a successful claim will be increased if the employer does not consider these issues.