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;
- A treats B unfavourably because of something arising in consequence of B’s disability.
- 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.