In the case of City of York Council v Grosset, the Court of Appeal had to decide whether there was discrimination arising from disability where the employer dismissed an employee for gross misconduct, knowing about the Claimant's disability, but not believing that it had affected the Claimant's actions.

The claim concerned a claim of discrimination arising from disability under section 15 of the Equality Act 2010 (the Equality Act). The Respondent knew that the Claimant suffered from cystic fibrosis, and it was accepted that this was a disability.

Following changes to school performance standards and the appointment of a new head teacher who was not aware of the Claimant's disability, the Claimant's workload increased. The Claimant's self-management of his condition included the need to follow a lengthy daily exercise regime lasting up to three hours. He could not cope, became very stressed under this increased pressure of work and his physical health suffered badly. While subject to this high level of stress, the Claimant showed a class of 15 and 16 year olds an 18 rated horror film entitled Halloween without prior approval from the School or the pupils' parents. He was summarily dismissed for gross misconduct.

In the disciplinary proceedings, the Claimant accepted that showing the film was inappropriate but said that it had happened as a result of an error of judgement on his part arising from the high level of stress he was under at the time in consequence of his disability. The Respondent did not accept this, nor did it accept that the Claimant's regret and remorse were sincere. The Claimant's appeal against his dismissal was not upheld.

In the Employment Tribunal, his claim of unfair dismissal failed as the Tribunal found that dismissal was within the range of reasonable responses open to the employer. However, the Tribunal upheld the Claimant's claim of discrimination arising from disability under Section 15 of the Equality Act. The EAT did not alter these findings.

Court of Appeal

The question for the Court of Appeal was whether there had been discrimination arising from disability in relation to the Claimant's dismissal. Under section 15 of the Equality Act, discrimination arising from disability occurs where:

  • A treats B unfavourably because of something arising in consequence of B's disability
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim (objective justification).

If an employer does not know, and could not reasonably be expected to know, that B has the disability, there is no unlawful discrimination under section 15.

It was accepted that the Claimant's dismissal amounted to unfavourable treatment.

The focus of the appeal was upon whether or not it was necessary for the Respondent itself to appreciate that the Claimant's behaviour in showing the film arose in consequence of his disability. The Court held that it was not necessary: it was an objective assessment for the Tribunal to make. The Tribunal had found that his dismissal was because he had showed pupils an inappropriate film and that, contrary to the Respondent's belief, he had done so in consequence of his disability. It is worth noting that the Tribunal had the benefit of additional medical evidence in reaching this decision, which was not available to the Respondent at the time of the dismissal.

Of course, the Respondent would have had a defence if it had been able to objectively justify the unfavourable treatment. Here, the Respondent was unable to do so, largely due to the fact that the Respondent had failed to make reasonable adjustments to control his workload and, had it made those adjustments, the Tribunal found it would have been extremely unlikely that he would have showed the film.

The case also confirms that there can be an unsuccessful unfair dismissal claim and a successful discrimination claim relating to the same dismissal.

Comment

The Court held that the risk of unfavourable treatment because of something that has arisen from the disability is cast on to the Respondent rather than the Claimant. If the Respondent does not know (and could not be reasonably expected to know) that the Claimant suffers from a disability, he has a defence. But if he does know that there is a disability, the Court observed that it would be wise to look into the matter more carefully before taking unfavourable action. It would certainly be worth obtaining medical evidence on the specific implications of a disability and whether the disability could have contributed to an employee's actions, before taking dismissal decisions in this sort of situation. The Respondent in this case did have some medical evidence at the point of dismissal but it was not as relevant as that which was subsequently made available to the Tribunal.

The Respondent was unable to objectively justify the unfavourable treatment, mainly because of its failure to put in place reasonable adjustments. This case underlines the importance of ensuring that an employer has put in place reasonable adjustments. If it has not done so, and that failure contributes to an employee's actions or the decision to dismiss, an employer is far less likely to be able to objectively justify the ultimate dismissal.