The EAT has upheld a decision of the EAT in City of York Council -v- Grosset 2016, holding that the employer had committed discrimination arising from disability when it dismissed an employee for misconduct - notwithstanding the fact that they had not attributed the misconduct in question to the employee’s disability.

Mr Grosset was employed as a teacher. He had cystic fibrosis, which the parties agreed amounted to a disability. After a change of head teacher at the school, his workload greatly increased and he began suffering from stress and finding it difficult to cope. Mr Grosset showed an 18-rated film to classes of 15 and 16 years old pupils; he was suspended and dismissed for gross misconduct.

The EAT upheld the tribunal’s decision that this amounted to discrimination arising from disability, section 15 Equality Act 2010. Mr Grosset suffered unfavourable treatment (i.e. his dismissal) because of something (i.e. the misconduct) arising in consequence of his disability. The tribunal saw medical evidence that the lapse in judgement in showing the 18-rated film to the pupils was caused by Mr Grosset’s impaired mental state and stress which arose “in large part” from his disability. The employer had not had the benefit of this medical evidence at the time it took the decision to dismiss - and had concluded that the misconduct was not linked to his disability. However, since the test for causation under section 15 is objective, the EAT stated that it did not matter that the employer had subjectively come to the conclusion that it was not in consequence of his disability - the fact remained that objectively the unfavourable treatment was because of something arising from Mr Grosset’s disability.

This case demonstrates that employers can be liable for discrimination arising from disability even where they have reasonably concluded on the basis of the available evidence that the misconduct in question was not linked to the individual’s disability. The only safeguard available to employers in such circumstances is to obtain medical advice on the potential for a link between the misconduct and the disability.