In a recent case, the Court of Appeal held that a fair dismissal can amount to discrimination arising from disability under the Equality Act where an employee is dismissed for misconduct caused by their disability. This can be the case even if the employer did not know that the disability caused the misconduct.
The case, City of York Council v Grosset, concerned a teacher, Mr Grosset, who suffers from cystic fibrosis. He required to go through a daily exercise regime lasting around 3 hours to manage his condition. He was subject to an increase in workload, which he could not take home or work extra hours to complete due to his exercise regime. This caused him to suffer increased levels of stress, as a result of which Mr Grosset showed an 18-rated film to a class of 15-year-olds without approval or the consent of parents. He was disciplined for this and accepted it was inappropriate to show the film, but maintained that he had made an error of judgement arising out of the stress he was under. This explanation was not accepted and he was dismissed for gross misconduct.
Mr Grosset brought claims in the employment tribunal for unfair dismissal and discrimination arising from disability. The latter claim, under s.15 of the Equality Act, is a claim that a person has been treated unfavourably because of something arising in consequence of their disability. Such conduct is unlawful unless an employer can show that the treatment can be objectively justified. Mr Grosset argued that his dismissal was unfavourable treatment because the conduct which led to his dismissal arose in consequence of his disability.
The employment tribunal found that the dismissal was fair in the circumstances and therefore his claim of unfair dismissal was unsuccessful under the Employment Rights Act 1996. However, it upheld the claim of discrimination arising from disability. It was argued by the Council that the school was not aware that the misconduct was linked to disability. However, the tribunal considered that on the basis of medical evidence which was before it (but which was not available to the school at the time the decision to dismiss was taken), that there was a link between the misconduct and Mr Grosset’s disability. The tribunal accepted that, in dismissing Mr Grosset, the school was pursuing a legitimate aim by seeking to safeguard pupils and maintain disciplinary standards, but found that they had not shown that the dismissal was a proportionate means of achieving those aims, and they had not objectively justified the decision to dismiss, so could not therefore rely on this as a defence to the claim.
The Council appealed this decision but it was upheld by the Employment Appeal Tribunal (EAT). The EAT held that a claim of discrimination arising from disability does not require the employer to have knowledge that the ‘something’ which resulted in the alleged unfavourable treatment was connected to or arose in consequence of a disability. The employer must only have knowledge that the Claimant has a disability (which in this case, the Council had), before a potential liability under section 15 arose. On further appeal by the Council, this decision was again upheld by the Court of Appeal.
This judgment of the EAT and Court of Appeal highlights the need for employers to be cautious in ignoring an employee’s disability where there is the potential for that disability to be an underlying cause contributing to misconduct. It will be prudent for employers to seek medical advice if an employee who is suspected of misconduct is known to have a disability, or a medical condition which may amount to a disability. The case of Mr Grosset highlights that misconduct may be connected to disability even where the link is not immediately obvious. Indeed, the tribunal relied upon medical evidence which was not available to the Council at the time of the disciplinary proceedings in concluding that there was a link between Mr Grosset’s actions and his disability. Therefore, whether or not the employer is aware of the link is not a question which a tribunal or court need to consider when hearing a subsequent claim for discrimination arising from a disability, as long as it can be shown that the link exists.
The case highlights that it is essential employers carefully consider all the circumstances relating to an employee’s employment, any explanation given by the employee for their actions and any available medical advice in making disciplinary or other significant decisions affecting employment.
It should be remembered, however, that while an employer does not need to have knowledge of a link between an employee’s actions and disability for a dismissal (or other unfavourable treatment) to be discriminatory, there does have to be evidence of such a link which can be shown. Further, it is a defence to such a claim for the employer to show that it was pursuing a proportionate means of achieving a legitimate aim. While City of York Council were not successful in persuading the Court that they were doing so in this case, in other cases, particularly those of more serious misconduct, it may be possible to establish such a defence.