City of York Council v Grosset UKEAT/0015/16/BA
Under the Equality Act 2010, direct and indirect discrimination is unlawful for all protected characteristics. However, there is a further type of discrimination unique to disability – 'discrimination arising from disability'. Under section 15 of the Equality Act, this occurs where A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (objectively justified).
In addition, under sections 20 and 21 of the Equality Act, an employer is under a duty to make reasonable adjustments for a disabled employee if the employer is aware, or reasonably could be aware, of the employee's disability.
In this case, the question was whether a school teacher who was dismissed for gross misconduct during a period of stress had been treated less favourably by his employer, despite his employer being unaware at the time of the link between his disability and the misconduct.
The Claimant was a teacher and Head of English at a secondary school. Both parties agreed that his cystic fibrosis (which required him to spend up to three hours a day on exercises to clear his lungs) meant that he was disabled for the purposes of the Equality Act 2010. In 2013, there was a new emphasis on measuring progress, not simply results, and a change in head teacher resulted in new initiatives that increased the Claimant's workload. The Claimant wrote a letter of complaint to the head teacher explaining the stress he was feeling and that, in order to manage his health issues, he needed a reduction in his workload.
In November 2013, the Claimant took a small class of 15 and 16 year olds, called a "nurture group" and in the course of two lessons, showed them the 18-rated film Halloween. Later that month, the Claimant was signed off from work due to stress, which had affected his lung function, and shortly thereafter it was discovered that the class had watched the film. The Claimant admitted that showing the film had been "inappropriate and regrettable" but argued that he had been affected by stress, to which his cystic fibrosis had contributed.
Following a disciplinary hearing in March 2014, the Claimant was dismissed for gross misconduct. The panel of governors who made the decision did not accept showing the film was a momentary lapse in judgment, pointing out that he could have stopped the film at several points. The medical evidence before the panel did not show any link between his disability and his misconduct. His appeal was unsuccessful. A grievance against the head teacher by the Claimant was heard separately but was also unsuccessful.
The Employment Tribunal held that both the increase in workload and the Claimant's dismissal were unjustified unfavourable treatment because of something arising in consequence of his disability. His physical exercises severely restricted his time and energy to adapt to changes at work and he had shown the film when suffering from a mental state such that errors of judgment might be anticipated (the Tribunal had fuller medical evidence than that available to the Respondent when the Claimant was dismissed, which had not suggested a link between his misconduct and his disability.) However, the Tribunal found by a majority that his dismissal was fair and within the range of reasonable responses open to an employer.
The Respondent appealed to the EAT, arguing that the Tribunal had failed to properly take account of the Respondent's own finding that there had been no link between the misconduct and the Claimant's disability. The EAT disagreed, holding that a tribunal must ask itself two questions: did the claimant's disability result in "something", and did the employer treat the claimant unfavourably because of that "something"? In this case, the Claimant's disability caused or resulted in his misconduct and the Respondent dismissed him because of that misconduct.
If an employer does not know, or could not reasonably have known, that an employee was disabled then the employer is not liable for a failure to make reasonable adjustments. However, under section 15 (disability arising from disability claims), knowledge is only applicable to whether the employer knows that the employee is disabled – it is not relevant whether the employer knows of the link between the disability and the "something".
The Respondent also argued that, in considering whether the less favourable treatment was objectively justified, the Tribunal had focussed too much on the medical evidence available to it, after the dismissal, and should have considered more what was available to the Respondent at the time and whether the Respondent had acted reasonably. The EAT dismissed this ground, holding that the Tribunal had kept the Respondent's business considerations and workplace practices in mind, and balanced the evidence appropriately. It was permissible to take into account the after-the-event medical evidence, and – since the test is one of objective justification – it was possible for the Tribunal to reach a different conclusion to the subjective conclusions of the Respondent at the time of dismissal.
What to take away
The case is a warning for employers – here, the employer had concluded (based upon the evidence available to it, including medical evidence) that the reason for the dismissal (in this case, an act of poor professional judgment sufficiently serious to be gross misconduct) was not caused by the employee's physical disability. Lack of knowledge of the link was not sufficient to break causation.
The EAT has also drawn a distinction between the subjective justification of the Respondent and the finding of objective justification (or rather, not) made by the tribunal on new evidence not available at the time. The case demonstrates the value of good medical evidence at an early stage and, if possible, before decisions are made.
The Respondent's decision to separate the grievance and disciplinary processes and hold them at the same time but before different panels was criticised but ultimately fell within the band of reasonable responses. To avoid such criticism, employers should be sure that panels have the full picture – in this case, the grievance related to the overwork and stress from which the Claimant was suffering, which was crucial to his defence to gross misconduct charges.
The Respondent is seeking leave to appeal to the Court of Appeal.
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