In City of York Council v Grosset, the Court of Appeal has upheld a finding of discrimination arising from disability where the employer did not know about the link between the disability and the misconduct at the time of the dismissal.
Mr Grosset was Head of English at a maintained school in York. He suffers from cystic fibrosis and it was accepted by the employer that his condition is a disability for the purposes of the Equality Act 2010. His condition requires a daily three hour exercise regime to clear his lungs. His workload at work increased and he suffered stress which worsened his condition. Mr Grosset showed an X-rated horror film, "Halloween", to a class of 15 and 16 year olds, some of whom were particularly vulnerable. He was suspended and dismissed for gross misconduct. At the time of the decision to dismiss, the employer did not believe the misconduct to be caused by the disability.
Mr Grosset brought claims for unfair dismissal and various discrimination claims, including discrimination arising from disability and a failure to make reasonable adjustments. The dismissal decision was found to be fair by an employment tribunal. Based on the evidence available to the employer at the time (which did not suggest a link between the misconduct and the disability), the decision to dismiss was within the band of reasonable responses.
However, the tribunal found that Mr Grosset had been discriminated against as a consequence of something arising from his disability. An employer can defend this claim if it can show that it did not know or could not reasonably be expected to know that the claimant was disabled. Here, the employer conceded that it knew of the disability. The tribunal found that the council had dismissed Mr Grosset because of his misconduct and that misconduct arose from his disability. It found that the council could not justify its decision to dismiss as a proportionate means of achieving a legitimate aim. The tribunal also found that the council had failed in its duty to make reasonable adjustments.
The EAT agreed. It reiterated the two stage test in discrimination arising from disability cases as set out in Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14. The tribunal will consider: whether the claimant's disability caused or had the consequence of, or resulted in, "something"; and whether the employer treated the claimant unfavourably because of that "something".
The EAT noted that the evidence before the tribunal showed that the cystic fibrosis caused the misconduct and it was irrelevant that the employer did not have evidence showing this link at the time of the unfavourable treatment. It was also clear that the employer treated Mr Grosset unfavourably (by dismissing him) because of the misconduct (indeed that was the employer's case in defence of the unfair dismissal claim).
The Court of Appeal agreed. It made clear that the tribunal should examine the subjective state of the decision-maker's mind when considering whether the claimant had been treated unfavourably because of the "something" arising in consequence of disability. However, what was in the employer's mind was not part of the consideration of whether the "something" arose in consequence of the disability. This is an objective assessment. The Court of Appeal pointed out that if this were not the case, the defence that the employer did not know about the disability would be redundant.
On the question of whether the dismissal was justifiable as a proportionate means of achieving a legitimate aim, the Court of Appeal commented on the importance of the tribunal's finding that Mr Grosset would not have suffered the same degree of stress if the employer had not failed in its duty to make reasonable adjustments.
Employers should be aware that different tests are applied by the tribunal when assessing whether someone has been unfairly dismissed and whether they have been discriminated against. Discrimination awards are uncapped in the Employment Tribunal, whereas compensatory awards for unfair dismissal are capped at the lower of £83,682 or 12 months' gross pay.
When undertaking a disciplinary process with a disabled employee, it is important to seek medical evidence on the question of whether the misconduct could be linked to the disability. However, as this case shows, even where medical evidence states there is no link, there is a risk that later evidence of a link could found a discrimination arising from disability claim.
The tribunal award in this case was in the region of £650,000 as it included significant career loss and pension liabilities. It h s been reported that the Council will not attempt to appeal this decision in the Supreme Court.
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