The Court of Appeal has recently held that a claim for discrimination arising from disability does not require the employer to know that disability is the underlying cause of whatever has led to its unfavourable treatment. Accordingly, it was possible for the dismissal of a teacher for misconduct to amount to discrimination arising from disability, in circumstances where the school did not know that the underlying cause of the misconduct was the employee’s disability.
An employer must not treat a person less favourably because of something arising in consequence of their disability than it treats, or would treat, another person without that disability, unless it can justify the unfavourable treatment by showing that it is a proportionate means of achieving a legitimate aim (s15 Equality Act 2010). There must be a connection between the disability and whatever led to the unfavourable treatment (para 5.8 Equality Code).
G, a school teacher, has cystic fibrosis and was known by his employer to be disabled. Various reasonable adjustments had been agreed by the school to accommodate G’s disability but these were not properly recorded. As a result, when a new headteacher was appointed, G was subjected to an increased workload and this led to him suffering from stress. During this time, G showed a group of 15-16 year old pupils an 18-rated film without the school’s approval or parental consent. Disciplinary proceedings commenced. G accepted that showing the film was inappropriate and said that he had made an error of judgment arising from stress. The school did not accept this explanation and G was dismissed for gross misconduct. G brought tribunal claims of unfair dismissal and disability discrimination. Medical evidence before the tribunal, which had not been available to his employer at the time of the disciplinary process, linked G's behaviour to his disability. The employment tribunal upheld G’s discrimination arising from disability claim. This was subsequently upheld by the EAT and the employer appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal held that less favourable treatment (in this case the misconduct dismissal) can amount to discrimination arising from disability in circumstances where the employer did not know that the misconduct was caused by the disability. An employer must not treat a person less favourably because of ‘something’ arising in consequence of their disability than it treats, or would treat, another person. There has to be a causal link between the ‘something’ and the unfavourable treatment. However, this is assessed objectively and does not depend on the employer knowing that the disability is the underlying cause.
The Court of Appeal held that a claim for discrimination arising from disability requires consideration of two questions:
- Did the employer treat the employee unfavourably because of ‘something’? and
- Did that ‘something’ arise in consequence of the employee's disability?
Here, the tribunal had been entitled to find that the causal link was established between G’s misconduct and his disability. In the Court of Appeal’s view, a discrimination arising from disability claim does not depend upon the employer being aware that the disability was the underlying cause of the ‘something’ which has led to the unfavourable treatment.