Employer liable for discrimination arising from disability when dismissing for misconduct which it did not know was connected to disability.
The Claimant ("C") was an English teacher employed in one of the Respondent's ("R") schools. He had cystic fibrosis and a number of workplace reasonable adjustments were agreed to accommodate his disability. Unfortunately these were not communicated to a new head when he started at the school and C's workload was increased causing him stress.
While under stress C showed an 18-rated film, Halloween, to a class of 15 year olds without the school's permission or parents' consent. He was disciplined for this and claimed that this incident was an error of judgment brought about by stress resulting from the combination of increased workload and his cystic fibrosis. R did not accept this and dismissed C for gross misconduct.
C brought claims in the Employment Tribunal ("ET") including one of unfair dismissal and one of discrimination arising from disability under section 15 Equality Act 2010.
Section 15 EqA provides:
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
The ET upheld C's claim. It saw medical evidence that established a link between C's stress which arose from his disability and the error of judgment in showing the film. This evidence had not been before R's disciplinary panel which was unaware that there was such a link. However, the ET held that this satisfied the causative link set out in section 15. The ET went on to find that the employer's aim of safeguarding children and maintaining discipline was legitimate, but that it had not shown that the dismissal was a proportionate means of achieving that aim. The ET dismissed C's claim of unfair dismissal.
The Court of Appeal dismissed the employer's appeal and held that section 15 of the Equality Act 2010 "requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) "something"? and (ii) did that "something" arise in consequence of B's disability". The section imposes no requirement that the employer must be shown to have been aware when choosing to subject the employee to the unfavourable treatment in question that the relevant "something" arose in consequence of B's disability.
The Court of Appeal also held that there was no inconsistency in the ET finding that the dismissal was on the one hand discriminatory, but on the other was not unfair. The legal test for unfair dismissal is that the dismissal fell within a band of reasonable responses which affords the employer considerable latitude, whereas section 15 is an objective test that allows the ET to make its own assessment.
The Court of Appeal's decision in Grosset is good news for people with mental health problems. Poor mental health can be a factor in people's work performance dropping or in workplace misconduct. Dismissal or disciplinary action for these issues can be discrimination arising from disability if there is a genuine connection between the disability and the capability or conduct issue even if the employer is not made aware of the connection. Note that the employer must be aware, or ought reasonably to be aware, of the employee's disability but it does not have to be aware that this has given rise to the misconduct or poor performance. Employers always have the opportunity to justify unfavourable treatment under section 15 but it is doubtful that they will be able to do this if there are reasonable adjustments that they have failed to make.
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