106: Employer liable for discrimination arising from disability even though it had no knowledge of link between disability and misconduct

Discrimination arising from disability occurs where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

In City of York Council v Grosset, the Court of Appeal has confirmed that a teacher suffered discrimination arising from disability where his employer did not know about the link between his disability and his gross misconduct at the time of his dismissal.

Mr Grosset was Head of English at a school run by City of York Council. He suffers from cystic fibrosis and it was accepted by the Council that this condition is a disability for the purposes of the Equality Act 2010. Following a change in head teacher, Mr Grosset’s workload increased, resulting in severe stress which exacerbated his cystic fibrosis. During this period, Mr Grosset showed an 18-rated film, ‘Halloween’, to his classes of 15 and 16 year olds. He was suspended and eventually dismissed for gross misconduct. At the time of the decision to dismiss, the disciplinary panel did not know that his misconduct had been caused by his condition. Mr Grosset brought various claims in the Employment Tribunal, including discrimination arising from disability.

By the time of the Tribunal hearing, medical evidence was available which showed that there was a link between Mr Grosset’s misconduct and his disability. The Tribunal therefore concluded that Mr Grosset had suffered unfavourable treatment as a consequence of ‘something’ (ie his misconduct in showing the film), which arose from his disability. It also held that the Council could not justify its decision to dismiss as a proportionate means of achieving a legitimate aim.

The EAT and the Court of Appeal agreed with the Tribunal’s decision. The Court of Appeal noted that a two-stage test applied. First, did the employer treat the employee unfavourably because of an identified ‘something’, which involved considering the decision-maker’s state of mind. Second, was there a causal link between that ‘something’ and the employee’s disability, which was an objective test. There was no requirement that the employer had to be aware of this link. Here, the Council had dismissed Mr Grosset because he had shown the film. He had done this because he was suffering from exceptionally high stress, which arose from the effect of his disability under increased work pressures. The Court of Appeal also confirmed that Mr Grosset’s dismissal was not proportionate, noting that he would not have suffered such severe stress if the Council had made appropriate reasonable adjustments to reduce his workload.

This case illustrates the potential difficulties involved in defending discrimination arising from disability claims. Employers will not be liable if they did not know, and could not reasonably be expected to know, that the employee was disabled. However, employers may be liable if they do not know that an employee’s conduct was a consequence of their disability, or if they have concluded from the available evidence that there is no link. This highlights the importance of obtaining medical evidence before taking disciplinary action against a disabled employee in order to establish whether the misconduct could be due to their disability.