A dismissal for misconduct can be discriminatory even if the employer does not know that a disability has caused the misconduct.

The facts

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.

Mr Grosset had to spend several hours a day undergoing physiotherapy and exercises to clear his lungs. His cystic fibrosis and this regime meant that he struggled to cope when additional demands were placed on him. Various reasonable adjustments had been agreed to accommodate his disability, but, following a change in head teacher, new and increased demands were placed on Mr Grosset and he suffered from stress, which in turn exacerbated his condition.

While under this increased level of stress, Mr Grosset showed an 18 rated film, "Halloween", to a group of 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. The film was shown without the school’s approval or parents’ consent. Mr Grosset was signed off with stress when the new head teacher found out about the screening of the film.

During the consequent disciplinary proceedings, Mr Grosset accepted that showing the film was inappropriate, but maintained that it was an error of judgment arising from the high level of stress he was under as a consequence of his disability. The school did not accept that the showing of the film had been a result of an error of judgment brought on by stress, nor did it accept that the expressions of regret and remorse shown by Mr Grosset were sincere. He was dismissed for gross misconduct.

Mr Grosset brought a range of claims in relation to his dismissal. The tribunal unanimously found that his dismissal was discriminatory, as it amounted to unfavourable treatment “because of "something" arising in consequence of his disability”. The tribunal dismissed his claim of unfair dismissal, finding that the school was unaware at the time it decided to dismiss Mr Grosset that his misconduct was linked to his disability.

Mr Grosset and the Council both appealed to the EAT (see our link here to Feb 2017 alert] which dismissed both appeals.

The Council appealed to the Court of Appeal. The Council argued that the disability claim could not succeed unless Mr Grosset could show that the school appreciated that Mr Grosset’s behaviour in showing the film arose as a consequence of his disability.

The Court of Appeal rejected this argument. It held that the legislation requires an investigation into two different causative issues: i) did the employer treat the employee less favourably because of an identified “something”? and ii) did that something arise in consequence of the employee’s disability? Point i) involves an examination of the employer’s state of mind to establish whether the unfavourable treatment occurred by reason of the employer’s attitude to the relevant “something”. In this case, it was clear that the "something" was dismissing Mr Grosset because he showed the film.

The Court of Appeal held that test ii) is an objective matter: whether there is a causal link between the employee’s disability and the relevant “something”. In this case, on the tribunal’s findings, there was such a causal link. Mr Grosset showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work.

The Court of Appeal held that it is not possible to read into the legislation a requirement that the employer must be aware, when choosing to subject the employee to the unfavourable treatment, that the relevant “something” arose in consequence of his disability.

The Court of Appeal also agreed with the tribunal and the EAT that Mr Grosset's treatment was not justified: dismissing Mr Grosset was disproportionate in the circumstances. A particularly strong factor underlying this conclusion was the assessment by the tribunal that, if the Council had put in place reasonable adjustments by reducing the work pressure on Mr Grosset, he would not have been subjected to the same level of stress and (the tribunal had found) it would have been “unlikely in the extreme” he would have shown the film.

What does this mean for employers?

When disciplining an employee whom they know to be disabled, or subjecting them to other unfavourable treatment, employers should consider whether the disabled employee's conduct, or performance issues might stem, in any way, from their disability. The connection between the disability and the misconduct or poor performance may not be obvious. Employers should be particularly alive to this where employees themselves claim this is the case , but employers also need to think about this where the employee does not raise the possibility. Taking thorough medical advice about this at the time will be a crucial step.

If there is a chance that the reason for the treatment might arise from a disability, employers should carefully test their actions, to ensure they are proportionate. If they are not, employers are unlikely to be able to justify their action and are likely to lose a disability discrimination claim should the employee bring such a claim.

City of York Council v Grosset [2018] EWCA Civ 1105