City of York Council v B J Grosset (Court of Appeal) 

The Court of Appeal has confirmed that dismissing an employee on grounds of misconduct may amount to discrimination arising from disability in circumstances even where the employer is not aware of a causal link between the relevant conduct and an underlying disability. Whether or not actions are caused by disability are to be assessed on an objective, rather than subjective basis. 

The employee, head of English at a secondary school, suffered from cystic fibrosis. His employer was aware of this, accepted it to be a disability for the purposes of the Equality Act 2010 ("EA") and had initially made reasonable adjustments to his teaching schedule to accommodate his health needs. Following a change in management, however, new initiatives and targets were introduced which increased his workload. He consequently suffered from stress and his health suffered. During a period of acute stress, he took the decision to show an 18-rated horror film to underage students without consent from parents or the school. On discovering this, the employee was disciplined and dismissed for gross misconduct. The disciplinary panel actively considered, but rejected, the idea that his decision to show the film had flowed from the stress he was under, or his underlying health issues.  

The employee alleged that his employer's actions amounted to unfavourable treatment because of something arising in consequence of his disability, which therefore met the criteria for a successful discrimination arising from disability claim under s.15 EA. The CA agreed, noting that he had been subjected to a detriment for showing the inappropriate file (the "something" from the test cited above), and that there was an objective, causal connection between this action and his high stress levels; which was a result of his underlying condition and his demanding new working requirements. The Court confirmed that an employer's subjective knowledge of the link between an employee's disability and their actions is irrelevant for the purposes of s.15 EA. 

This is a problematic outcome for employers, who may now be liable for discrimination arising from disability even where they reasonably satisfy themselves – through proper disciplinary proceedings – that an employee's actions are not due to a disability. The case serves as a reminder for organisations to keep detailed records of reasonable adjustments made and keep these under regular review. It is also prudent to obtain medical evidence when concerned about the actions of a disabled employee, to obtain a second view on whether these could be a result of their medical condition as it appears that no de-minimum principle will apply when assessing the relevant causal link.