When dismissing an employee for misconduct, does an employer discriminate if it did not know the misconduct was linked to a disability? This was the question in the case of City of York Council v Grosset.

Background

  • Mr Grosset was a teacher. He suffered from cystic fibrosis. His employer, the School, knew about this, and accepted it was a disability.
  • After a change in management at the School, new targets and standards were brought in. This increased Mr Grosset’s workload and caused him stress, which exacerbated his condition. His health began to deteriorate.
  • During this time, as part of a lesson, Mr Grosset showed an 18-rated horror film to a class of 15 and 16 year olds. He did not have permission from the School, or consent from the pupils’ parents.
  • Mr Grosset was invited to a disciplinary hearing. He accepted it was not right to have shown the film, but he said that, at the time, his judgment was seriously impaired due to stress, which was linked to his disability. The School did not accept this and dismissed him for gross misconduct.
  • Mr Grosset brought a claim for ‘discrimination arising from disability’. This is where an employer has treated an employee unfavourably because of something arising in consequence of the employee’s disability, and the employer cannot show the treatment was justified. Mr Grosset also brought a claim for unfair dismissal. This note covers only the discrimination claim.

What was decided?

  • The Employment Tribunal (ET) decided Mr Grosset had been treated unfavourably because of something arising from his disability. Based on the medical evidence presented at the hearing, the ET decided there was a link between Mr Grosset’s conduct, and his disability, in that the stress he was under had impaired his mental state, which affected his judgment in showing the film. The ET decided the School could not justify its treatment of Mr Grosset.
  • The School appealed to the Employment Appeal Tribunal, who agreed with the ET. The School appealed again, to the Court of Appeal (CA), but was unsuccessful.
  • The CA said that the ‘test’, when looking at a claim for ‘discrimination arising from his disability’ is:

1) Did the employer treat the employee unfavourably because of an identified “something”; and

2) Did that “something” arise in consequence of the employee’s disability?

  • The “something” in this case was the showing of the film by Mr Grosset, which had led to his dismissal.
  • The CA said it does not matter if the employer, at the time, did not know about the link between the employee’s actions and the disability; the employer could still be liable. The employer’s knowledge, or lack of it, only comes into play when looking at whether the employer knew the employee was disabled in the first place. In Mr Grosset’s case, the School knew he was disabled and it was not trying to argue otherwise.
  • The CA said that if an employer does not know the employee suffers from a disability, the employer has a defence. But if the employer knows there is a disability, it would be wise to look into the matter carefully before taking any unfavourable action.
  • The CA agreed with the ET that the School could not justify its treatment of Mr Grosset. A relevant factor was that the School had not made reasonable adjustments which could have reduced Mr Grosset’s stress levels at the time, for example by moderating his workload. Had the School done so, the Court’s view was it would have been extremely unlikely that Mr Grosset would have had the lapse of judgment and shown the film to his class.

What does this case mean for employers?

  • We have previously looked at a case about an employer’s knowledge of disability. In Mr Grosset’s case, the School would have had a defence if it had not known (or could not have been expected to know) about Mr Grosset’s disability in the first place.
  • However, where an employer knows an employee is disabled, the employer should take heed of what the CA said in Mr Grosset’s case, about looking into matters carefully before taking any action.
  • Employers should always consider getting medical evidence in cases like this. Even if the medical evidence confirms a link between the employee’s actions and the disability, the employer may still be able to defend a claim if it can show that its treatment of the employee (for example dismissal) was justifiable. This means showing there was a good reason for the treatment and that it was proportionate. This can be quite a high hurdle and involves careful thought by the employer.