Case update (3): Disability discrimination – cause of misconduct

Summary: Can a dismissal for misconduct be discriminatory even if the employer does not know that a disability has caused the misconduct?

Yes, says the Court of Appeal in City of York Council v Grosset available here.

Facts:  The employee, Mr Grosset was employed as a teacher. He had cystic fibrosis, which the parties agreed amounted to a disability. After a change of head teacher at the school, his workload greatly increased and he began suffering from stress and finding it difficult to cope. Mr Grosset showed an 18-rated film to classes of 15 and 16 years old pupils; he was suspended and dismissed for gross misconduct.

Mr Grosset brought Tribunal claims for unfair dismissal and disability discrimination. The Tribunal held, on the basis of the medical evidence that it had seen, that Mr Grosset had shown the film when he was suffering from an impaired mental state because of the stress arising from his disability. Therefore, the Tribunal found that his employer could not justify his dismissal and it had amounted to discrimination because of “something” arising in consequence of his disability. The Council appealed.

The EAT upheld the Tribunal’s decision that this amounted to discrimination arising from disability.  Although the employer had not had the benefit of medical evidence at the time it decided to dismiss, the test for causation is objective.  Therefore it did not matter that the employer had subjectively come to the conclusion that Mr Grosset’s conduct was not because of his disability.  Objectively the unfavourable treatment was because of something arising from Mr Grosset’s disability.

The Court of Appeal upheld the EAT’s decision.  It confirmed the relevant issues as:

1. 1. did the employer treat the employee less favourably because of an identified “something”; and
   2. did that something arise in consequence of the employee’s disability.

The Court of Appeal held that it is not possible to read into the legislation a requirement that the employer must be aware, when choosing to subject the employee to the unfavourable treatment that the relevant “something” arose in consequence of his disability.

The Court of Appeal also agreed that dismissing Mr Grosset was disproportionate in the circumstances. A particularly strong factor underlying this conclusion was the Tribunal’s assessment that if the Council had put in place reasonable adjustments to reduce the work pressure on Mr Grosset, it would have been “unlikely in the extreme” he would have shown the film.

Implications: This decision makes clear that employers can be liable for disability discrimination even if they make a seemingly reasonable decision that there is no link between the misconduct in question and the individual’s disability. It is therefore very important that employers obtain thorough medical advice when disciplining disabled employees on the connection between the misconduct and their disability.  This is the case even if there is seemingly no connection between the disability and the misconduct or poor performance.