2 August 2018

Disabled Teacher Wins Disability Discrimination Claim But Fails On Unfair Dismissal

Barlow Robbins LLP


Barlow Robbins LLP
The City of York Council (the Council) has lost a Court of Appeal (CA) battle against a school teacher claiming disability discrimination.
UK Employment and HR
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The City of York Council (the Council) has lost a Court of Appeal (CA) battle against a school teacher claiming disability discrimination.

Mr Grosset was Head of English and he suffered from cystic fibrosis, a protected disability under the Equality Act 2010. His employer, the Council, knew he was disabled and at the start of his employment various adjustments had been made for him. However, no proper record was kept and when a new Head Teacher was appointed at Mr Grosset's school, these adjustments were overlooked and Mr Grosset's workload was increased. He needed to spend some three hours per day clearing his lungs and could not cope with the increased workload. This made him stressed.

While subject to a high level of stress, Mr Grosset showed a class of 15/16 year olds an 18-rated horror film entitled 'Halloween'. He did not inform the school/obtain approval nor did he obtain consent from the pupils' parents. When this was discovered by the school Mr Grosset was summoned to a disciplinary hearing and he was summarily dismissed for gross misconduct. In the disciplinary proceedings, Mr Grosset accepted that the showing of the film was inappropriate but maintained that this was the result of an error of judgment resulting from the high level of stress he was under in consequence of his disability. The Council did not accept that the showing of the film had been as a result of an error of judgment brought on by stress.

Mr Grosset brought claims of unfair dismissal and disability discrimination. These were considered by the CA.

Section 15 of the Equality Act describes discrimination arising from disability as:

  • unfavourable treatment of a person because of 'something' arising in consequence of a person's disability; and
  • the unfavourable treatment cannot be shown to be a proportionate means of achieving a legitimate aim.

The CA considered whether a) the Council treated Mr Grosset unfavourably because of an identified 'something' and b) did that 'something' arise in consequence of his disability. It found that in this case the Council dismissed Mr Grosset because he showed the film. This is the relevant 'something'. It went on to find that Mr Grosset showed the film as a result of exceptionally high levels of stress, which arose from the effect of his disability when new and increased demands were made of him at work.

It did not matter that the Council did not know that his disability was connected to the misconduct. The CA also held that had reasonable adjustments been made for Mr Grosset he would not have suffered such high levels of stress which resulted in his error of judgement.

The CA, considering the earlier decisions of the employment tribunal and the employment appeal tribunal, held there was no inconsistency between the rejection of the unfair dismissal claim and the upholding of the claim for disability discrimination. The first test is about the band of reasonable responses and allowed the Council considerable latitude. By contrast section 15 of the Equality Act demands an objective test permitting a tribunal to make its own assessment.

Unfavourable treatment for something arising in consequence of disability may be justified. In this case, it was accepted that the Council had a legitimate aim when it dismissed the teacher – in fact, more than one: the protecting and safeguarding of children (showing the film breached its safeguarding policy) and the maintaining of disciplinary standards – but that the means of achieving that aim (the dismissal) was not proportionate. This was because those aims could have been achieved by means that would have had less impact on the teacher (such as a warning).

Accordingly, a dismissal may be fair and at the same time it may amount to disability discrimination. This shows the need to take particular care with dismissals where disability is a factor. It also demonstrates the vital importance for schools of regularly reviewing the reasonable adjustments required for their disabled employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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