City of York Council v Grosset was a case about disability discrimination under section 15 of the Equality Act – discrimination "arising from" disability. There is no discrimination under this section if the employer can show that they did not know (and could not reasonably have been expected to know) that the employee had a disability.
The Council was aware that the employee, an English teacher, suffered from cystic fibrosis. As a result of his condition, he had to spend up to three hours a day in gruelling exercises to clear his lungs. When his workload increased, the claimant suffered stress which exacerbated his condition. During this period, he showed an 18-rated film to lessons of 15 and 16 year olds. When this was discovered, he was suspended and eventually dismissed for gross misconduct.
The Employment Tribunal dismissed the unfair dismissal complaint but upheld claims of discrimination arising from disability, taking account of medical evidence available by the time of the Tribunal hearing that demonstrated that there was a link between the misconduct and the disability. On the facts of the case the employer could not show that the dismissal was justified.
The Council appealed to the EAT, arguing that it was reasonable for the Council to conclude, based on the evidence available at the time, that there was no link with the disability, as required under section 15. The EAT disagreed. The reason for the dismissal was misconduct (showing the film); this arose as a consequence of the claimant's disability and the Council had treated him unfavourably (by dismissing him) because of that. It was not necessary to decide whether or not the Council knew that there was a link between the misconduct and the disability. Employer's knowledge is only relevant in a limited context – did the employer know that the employee was disabled?
The case illustrates the difficulties for an employer facing a section 15 disability discrimination claim, over and above those applying to the duty to make reasonable adjustments. On the basis of current case law, there is no liability for failure to make adjustments either where the employer did not know/could not have known that the employee had a disability or where it didn’t have knowledge that the employee was likely to be substantially disadvantaged as a result.