Knowledge of consequences of disability not required for discrimination arising from disability
The Court of Appeal has held in City of York Council v Grosset that, despite the fact it had dismissed a disabled employee not knowing that the misconduct for which it was dismissing arose from the employee's disability, the employer had committed discrimination arising from the claimant's disability.
This decision is concerning for employers who may be found to be guilty of discrimination even where they conclude that an employee's behaviour (which then leads to the taking of disciplinary action) has nothing to do with their disability.
The claimant, a teacher and Head of English, suffers from cystic fibrosis, a fact of which the Council was aware. Following a change of head teacher the claimant's work load increased and the claimant suffered stress which, in turn, exacerbated his cystic fibrosis. He showed a class of 15 and 16-year-olds the 18-rated film 'Halloween' and was then suspended and dismissed for gross misconduct. The tribunal considered medical evidence during the course of the hearing. The evidence which was available to the Council at the time of the dismissal did not suggest a link between the claimant's misconduct and his disability. However, medical evidence available by the time of the tribunal hearing demonstrated otherwise. Although the tribunal dismissed the claimant's unfair dismissal complaint it upheld claims of discrimination arising from disability, including in relation to the dismissal taking account of the later medical evidence.
The Council appealed, and when the Employment Appeal Tribunal (EAT) dismissed the appeal, it appealed again to the Court of Appeal. The Court of Appeal held that two issues had to be considered. The first was whether the Council had treated the claimant unfavourably because of an (identified) "something", and the second was whether that "something" arose in consequence of the claimant's disability. The relevant "something" was the dismissal of the claimant because he showed the film. The tribunal had found that the claimant showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work.
The Court held that it was clear that the reason for dismissal was misconduct (in other words the showing of the film), and that, based on the evidence before the tribunal, the misconduct arose in consequence of the claimant's disability. It concluded, along with the EAT, that Section 15 of the Equality Act 2010 (which deals with discrimination arising from disability) did not require the tribunal to decide whether the Council knew that there was a link between the misconduct and disability. Knowledge is only relevant to whether the employer knows that the employee is disabled at all.
Take note: The decision in Grosset places a high onus on employers to investigate the reasons behind the behaviour of an employee who they know is disabled. Here the employer was found to be guilty of discrimination arising from disability even when it had concluded, on the basis of the available evidence, that the reason for which it dismissed the disabled employee was not caused by their disability.
When it comes to claims for discrimination arising from disability, an employer will only escape liability if it did not know, and could not reasonably have been expected to know, that the employee had a disability, save for arguing that the employee is not disabled at all. The fact that the employer does not know that the disability produced a certain consequence will be irrelevant.
This article is taken from HR Law - June 2018.