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Can an Employer Be Liable for Discrimination Arising from Disability Where it Did Not Know the Employee's Misconduct Was Caused By Their Disability?

on Friday, 25 May 2018.

The Court of Appeal ('CA') has recently upheld the Employment Appeal Tribunal's ('EAT') decision in City of York Council v Grosset...

...and confirmed that a claim for discrimination arising from disability does not require the employer to know that the employee's disability is the underlying cause of whatever has led to its unfavourable treatment.

We have previously reported the EAT's decision in this case.

The CA's Decision

The CA confirmed that the relevant questions for consideration in relation to a s15(1)(a) Equality Act 2010 (EqA) claim for discrimination arising from disability will be:

  • Did the employer treat the employee unfavourably because of ‘something’?
  • Did that ‘something’ arise in consequence of the employee's disability?

The CA rejected the Council's argument that a s15 EqA claim could not be made out unless Mr Grosset could show that the School was aware that his behaviour (in showing an 18 rated film to a class of 15 and 16 year olds) arose in consequence of his disability.

Therefore, despite the fact that the Council did not have medical evidence showing a link between Mr Grosset's misconduct and his disability, a tribunal was entitled to make a finding of discrimination arising from disability on the basis of medical evidence which only later became available at trial. 

The CA further dismissed the Council's appeal that there had been an inconsistency between the tribunal's rejection of Mr Grosset's claim for unfair dismissal and its upholding of his claim for disability arising from discrimination. The CA distinguished the test of reasonableness applicable to unfair dismissal cases, which gives employers a 'significant latitude of judgment' , from the test for objective justification under s15(1)(b) EqA. The latter test is an objective test requiring a tribunal to make its own assessment of whether the less favourable treatment of the employer was a proportionate means of achieving a legitimate aim. Accordingly there was no inconsistency between these findings.

Best Practice

In its decision, the CA have confirmed that an employer can be liable for discrimination arising from disability where it formed a reasonable conclusion (based on evidence available to it at the time) that an employee's misconduct was not connected to their disability.

In her judgment, Lady Justice Arden described the decision as “another important landmark in the development of disability discrimination”.

The case is a reminder to employers to look at the wider context in relation to employees' conduct and their disability. An employer will only avoid liability for a claim for discrimination arising from disability where it did not know, and could not reasonably have been expected to know, that the employee had a disability or where its actions can be objectively justified. When faced with an employee's potential misconduct it would be practical  to consider whether there could be another underlying reason, especially in the case of those with otherwise exemplary records.


For more information, please contact Eleanor Boyd in our Employment Law team on 020 7665 0940.

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