In City of York Council v Grosset, the Court of Appeal ('CA') has confirmed that a claim for discrimination arising from disability does not require the employer to know that a staff member's disability is the underlying cause of whatever has led to its unfavourable treatment.
A claim for discrimination arising from disability under s15 Equality Act 2010 (the EqA) will be established where:
An employer will not be liable under s15 where it did not know, and could not have been expected to know, that the employee was disabled.
Mr Grosset was a teacher and Head of English at a school run by the City of York Council (the Council). The Council was aware that Mr Grosset suffered from cystic fibrosis and conceded that he was disabled for the purposes of the EqA.
As a result of his condition, Mr Grosset needed to spend up to three hours per day undertaking physical exercise to clear his lungs. When his workload increased following a change in head teacher, Mr Grosset struggled to cope and suffered stress which in turn exacerbated his condition.
During this time, Mr Grosset chose to show the 18-rated film Halloween to a class of 15 and 16-year-olds. When the head teacher discovered this, Mr Grosset was suspended and subsequently dismissed for gross misconduct.
In deciding to dismiss Mr Grosset, the disciplinary panel found that there had been several points at which Mr Grosset could have stopped the film. It also noted his lack of remorse for choosing to show the film.
Mr Grosset brought various claims including claims for unfair dismissal and discrimination arising from disability.
Interestingly, the medical evidence available to the Council at the time of the dismissal did not demonstrate a causal link between Mr Grosset's misconduct and his disability. However, the subsequent medical evidence presented when Mr Grosset brought his claims did appear to show such a link.
Mr Grosset's claim for unfair dismissal was dismissed applying the band of reasonable responses test and taking into account the medical evidence that was available to the Council at the time of his dismissal - the reason for Mr Grosset's dismissal was clearly misconduct (the showing of the film).
Discrimination Arising from Disability
In contrast, based on the subsequent medical evidence provided with his claims, it was held that the misconduct had arisen in consequence of Mr Grosset's disability. The CA confirmed that the relevant questions for consideration in relation to a claim for discrimination arising from disability will be:
Despite the fact that the Council did not have medical evidence showing a link between Mr Grosset's misconduct and his disability, a finding of discrimination arising from disability was entirely possible on the basis of medical evidence which only later became available.
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 EqA. The latter test is an objective test requiring an assessment of whether the less favourable treatment of the employer was a proportionate means of achieving a legitimate aim.
This case demonstrates that an employer can be found guilty of 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 caused by their disability.
Schools should look at the wider context in relation to staff misconduct and any known disability. A school 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 staff member had a disability or where its actions can be objectively justified. When faced with a staff member's potential misconduct it would be prudent to consider whether there could be another underlying reason, especially in the case of those with otherwise exemplary records.