Discrimination arising from disability

The Court of Appeal has held that even if an employer is unaware that a disability has caused misconduct, dismissal can amount to unfavourable treatment under s15 Equality Act 2010. In order to establish whether discrimination arising from disability has occurred, two limbs need to be satisfied under s.15 (1) Equality Act 2010;

  1. A treats B unfavourably because of something arising in consequence of B’s disability.
  2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

City of York Council v Grosset involved a teacher who showed underage children a film for over 18s whilst at school. He was suspended and dismissed for gross misconduct. Mr Grosset has Cystic Fibrosis and due to an increase in workload as a consequence of a new head teacher, he suffered from stress which worsened his condition. The panel who dismissed Mr Grosset rejected that his action was a brief lapse in judgment, due to stress.

The Employment Tribunal held that although the dismissal was not unfair, Mr Grosset was a victim of discrimination arising from disability. Knowledge is not required regarding whether unacceptable behaviour is a result of disability. Knowledge is only relevant to whether the employer knows that the employee is disabled.

The Council appealed this decision, which the Court of Appeal unanimously dismissed. The Court found that Mr Grosset had been dismissed because he had showed the film. The Court then examined whether causation existed between Mr Grosset showing the film, and his Cystic Fibrosis. They found that there was a causal link.

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. Employers can be liable under s.15 EA, even where they have reviewed evidence and reasonably determined that there is no causal link between an employee’s improper behaviour and their disability. In light of this, it may be wise for employers to obtain medical evidence regarding whether the employee’s behaviour could be due to their disability, when disciplining a disabled employee. If the employer takes all of the reasonable steps possible to determine whether a causal link exists, it decreases the odds of taking action that would breach s15 EA. Employers may wish to trust in employees that their behaviour was a consequence of their disability, or they could be at risk of being claimed against successfully. 

CONTACT CHRIS

If you would like more information or advice relating to this article or an Employment law matter, please do not hesitate to contact Chris Cook on 01727 798089.

Read SA Law's latest employment views & insights
Stained glass window Employment SA Law
Views & Insights
Coronavirus Job Retention Scheme: Updated Guidance on Flexible Furloughing

Under the flexible furlough scheme, employees can work for some of the week and be furloughed for the rest, in proportions decided between employee and…

Read More
Views & Insights
Promoting good mental wellbeing during lockdown

Mental Health Awareness Week: Kelly Pike highlights how to support staff.

Read More
Stained glass window Employment SA Law
Views & Insights
Coronavirus Job Retention Scheme (CJRS) Direction and Extended Deadline

The Coronavirus Job Retention Scheme will be extended to 30 June 2020, plus The Treasury has also issued a Direction to HMRC which provides legally binding…

Read More
Stained glass window Employment SA Law
Views & Insights
COVID-19 Right to Work Checks Adjustment

Adjustments made to Right to Work Checks process for employers during COVID-19.

Read More
Stained glass window Employment SA Law
Views & Insights
Updated Furlough Guidance provides clarification for employers

Over the weekend the government updated its guidance for employers on the Coronavirus Job Retention Scheme (CJRS) - Keely Rushmore reports.

Read More
Stained glass window Employment SA Law
Views & Insights
FAQs Furloughing Employees / Job Retention Scheme

Frequently asked questions on Furloughing Employees to help employers, line managers and employees – answered by SA Law’s employment team.

Read More
SA Law Red arrow neon light image
Views & Insights
Data protection and the coronavirus pandemic

Good news: The ICO provides clarity on common areas of data concerns during the unprecedented coronavirus pandemic.

Read More
Join our mailing list

Want our latest views & insight along with exclusive event invitations and much more sent directly to you?

Read More

© SA LAW 2020

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.