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Discrimination arising from disability can arise even where employer does not have knowledge of consequences

MH
BY Miranda Hughes
Employment Law & HR

The Court of Appeal has held that an employee was subject to discrimination arising from disability where their employer knew that the individual was disabled but not that their actions were as a result of their disability.

Discrimination arising from disability occurs if the employer treats the employee unfavourably because of something arising in consequence of their disability, unless the treatment is objectively justified by the employer demonstrating that it was a proportionate means of achieving a legitimate aim. According to the EHRC, the consequences of disability include anything which is the result, effect or outcome of a disabled person’s disability.

The Claimant in City of York Council v Grosset was a the head of the English Department at a school. He had cystic fibrosis which his employer was aware of. A new head teacher started at the school and introduced a number of measures which increased Mr Grosset’s workload. He was struggling to keep up with the additional demands placed on him, especially because he could not use his evenings to catch up on work. His disability required him to exercise for up to three hours a day to clear his lungs which meant that he had little free time outside of working hours.

All of this led to Mr Grosset suffering from stress which also exacerbated his cystic fibrosis. This in turn caused him further stress as he was concerned that if his health deteriorated any further he would require a new set of lungs.

During this time, Mr Grosset was leading a nurture group, a small class of 15 and 16 year old pupils. Over the course of two lessons, he showed the pupils Halloween, an 18-rated film. This was done without the knowledge of the school or the pupils’ parents. Shortly after, Mr Grosset was signed off as unfit for work due to stress which was impacting upon his lung function. Whilst he was signed off, the head teacher covered some of his lessons and discovered that he had shown Halloween to some of his pupils. He was subsequently suspended and ultimately dismissed for gross misconduct.

The dismissing panel did not accept Mr Grosset’s arguments that showing the film had been a momentary error of judgment caused by the stress he was under. In particular they observed that he had shown the film over two lesson periods. He raised a claim for discrimination arising from a disability and unfair dismissal.

The Tribunal found that the dismissal was fair but that the Claimant had suffered discrimination arising from disability because the medical evidence available by the time of the Tribunal suggested that the Claimant’s actions were linked to his disability. That was despite the fact the medical evidence at the time of the dismissal did not make the connection. The Tribunal’s decision was upheld by both the EAT and the Court of Appeal. The position is that, while the employer needs to have knowledge of the employee’s disability before they can be found guilty of discrimination arising from disability, it does need to have knowledge that the disability produced a certain consequence.

In situations where an employer is aware that an employee has a disability, it may therefore be wise to accept that their act of gross misconduct could be linked to their disability but try to show that their response was a proportionate means to achieving a legtimate aim.

If you have any questions about discrimination arising from disability and what action you can take in response to acts of gross misconduct, contact your dedicated Legal Manager today. 

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