This difficult question arose in City of York Council v. Grosset UKEAT/0015/16.
Mr Grosset, a teacher and head of English at a school ran by City of York Council, suffered from cystic fibrosis. He was disabled within the meaning of the Equality Act 2010. Because of a change of head teacher, Mr Grosset's workload increased, he struggled with the extra demands placed on him and his health worsened because of this stress.
The school later discovered that Mr Grosset had shown a class of 15 and 16 year olds an 18-rated film. His employer suspended him. He tried to explain that his decision to show the film was a momentary error of judgement caused by the stress he was under. However, the school did not agree. It stated that he could have stopped the film at any point and dismissed him for gross misconduct.
Mr Grosset brought claims in the employment tribunal for unfair dismissal and disability discrimination. The tribunal held that Mr Grosset had shown the film when he was suffering from an impaired mental state because of the stress arising from his disability. Therefore, the tribunal found that his employer could not justify his dismissal and it had amounted to discrimination because of "something" arising in consequence of his disability. The Council appealed.
The EAT dismissed the Council's appeal. It found the tribunal had applied case law correctly and had been right in finding that Mr Grosset's act of showing the film was a consequence of his impaired mental state due to his disability. Specifically, the tribunal had identified the "something" which caused the Council to treat Mr Grosset unfavourably, in this case, Mr Grosset's misconduct in showing the 18-rated film to the class. The tribunal had then clearly decided on an objective basis, given the evidence before it, the "something" did arise as a consequence of Mr Grosset's disability.
On the question of justification, the EAT also agreed that the medical evidence showed the dismissal was not a proportionate means of achieving the Council's legitimate aim. Namely, protecting the children and ensuring that its disciplinary standards were maintained. In carrying out a balancing exercise of the Council's aims, the EAT stated the dismissal might well be proportionate, given the seriousness of the error of judgement. However, it went on to clarify that the medical evidence showed the stress significantly impaired Mr Grosset. Therefore, the Tribunal was permitted to conclude that Mr Grosset's dismissal was not a proportionate response when balanced against his impairment, and the EAT found that it could not uphold the Council's appeal.
This case shows an interesting point for employers to bear in mind in future concerning employees who have a disability of any kind. Namely, that employers can be guilty of discrimination arising from an employee's disability, even where they have considered the evidence available to them, and have reasonably concluded the misconduct was not linked to the disability. Therefore, employers are advised to err on the side of caution when it comes to conduct issues relating to a disabled employee. Employers should ensure they get medical advice on whether a link exists (or is likely to exist) between the employee's conduct and their disability.