The EAT has held that knowledge of the consequences of a disability is not required for claims of discrimination arising from a disability.
Mr Grosset was a teacher and Head of English at a school operated by City of York Council. He suffers from cystic fibrosis, and is disabled. The Council was aware of his disability.
Because of his cystic fibrosis, Mr Grosset had to spend three hours a day in a regime of physical exercise to clear his lungs. His cystic fibrosis and this regime meant that he struggled to cope when additional demands were placed on him. Following a change in Head Teacher, his workload increased significantly, and he suffered from stress, which in turn exacerbated his condition.
After Mr Grosset had been signed off for stress, the new Head Teacher found that he had shown an 18 rated film, "Halloween", to a group of vulnerable 15 and 16 years olds, some of whom (though Mr Grosset said he was unaware of this) were particularly vulnerable to self-harm, and two of whom had talked about suicide.
A disciplinary panel decided to dismiss Mr Grosset for gross misconduct. The panel did not accept that showing the film had been due to a momentary error of judgement caused by stress, and noted that there were several points at which Mr Grosset could have stopped the film. The panel was also concerned that Mr Grosset did not seem to feel what he had done was serious, and he had not shown remorse.
Mr Grosset brought an unsuccessful claim of unfair dismissal, a claim for failure to make reasonable adjustments, and a claim for discrimination arising from a disability. This alert only covers the claim of discrimination arising from a disability.
At the time of the dismissal, the medical evidence available to the Council did not indicate, when he showed the film, Mr Grosset was suffering from an impaired mental state such that errors of judgement might be anticipated. However, the medical evidence provided at the tribunal hearing showed that this was the case, and (on this evidence) the employment tribunal found that it was more likely than not that Mr Grosset had made the error of judgement in selecting "Halloween" as a result of the stress he was under: it was not an error he would otherwise have made and, in very large part, that stress arose from his disability.
The tribunal found that the error of judgement in showing the film arose as a consequence of Mr Grosset's disability, and the dismissal, was plainly an act of unfavourable treatment. The tribunal then looked to see whether the discrimination could be justified. While they found the Council had a legitimate aim of protecting children and ensuring disciplinary standards were upheld, given the medical evidence available to the tribunal (which postdated the dismissal decision) demonstrated that Mr Grosset was significantly impaired by stress at the time, dismissal was found not to be a proportionate response when the disadvantage to Mr Grosset of losing his job was put into the balance. The dismissal was therefore an act of disability related discrimination.
The Council appealed. Its appeal centred on what the Council knew at the time of the dismissal; in particular, the fact that it did not know that there was a link between Mr Grosset's misconduct and his disability.
The appeal was dismissed. The EAT found that the tribunal had correctly followed the two stage test required for discrimination arising from a disability which is:
- Did the claimant's disability cause, have the consequence of, or result in, "something"?
- Did the employer treat the claimant unfavourably because of that "something"?
The Council did not need to know that there was a link between the disability and the misconduct: it was sufficient that there was such a link.
The Council's appeal on justification was also unsuccessful. The EAT held that the tribunal had kept the Council's workplace practices and business considerations firmly in mind, it had carried out the appropriate balancing exercise, and it had been permissible for the tribunal to take into account the medical evidence that was not available to the Council at the time of dismissal.
Existing case law has shown that disabled employees need only establish a weak link between unfavourable treatment and their disability to establish discrimination arising from a disability. This case makes it easier still for an employee to make out a case of discrimination arising from a disability. Here, the employer had reasonably concluded on the basis of available medical evidence that Mr Grosset's conduct was not caused by his disability. In spite of its lack of knowledge about the link between the conduct and the disability, the employer was guilty of discrimination arising from a disability.
When taking any adverse action against disabled employees for their conduct or capability, employers should consider carefully whether there is any link between the conduct/capability and the employee's disability, however tenuous the link may seem. They should ensure that they have up to date medical information to help manage the risk that there is such a link. If there is any link, the employer should be conscious that they may need to justify any unfavourable treatment, and consider whether the action is proportionate under the circumstances or whether a lesser sanction might achieve their aims.
This case is particularly problematic for employers who have safeguarding obligations, who may be in the unenviable situation of balancing their safeguarding obligations against a discrimination risk.