A recent decision by the Court of Appeal has highlighted that employers need to look at the reasons behind an employee’s conduct. 

The case acts as a useful reminder that when dealing with misconduct or performance issues with an employee who is disabled, care needs to be taken to avoid being found liable for unlawful discrimination.

What are the facts of the case?

In City of York Council v Grosset, Mr Grosset suffered a disability in the form of cystic fibrosis. When he began employment at the school, the employer was aware of his condition and they made reasonable adjustments.

However, a new headteacher was appointed, who was not informed of Mr Grosset’s disability or the reasonable adjustments that had been agreed.  In addition, there was a change to the performance standards which applied to schools and this led to an increased workload for Mr Grosset , who became very stressed. His lung function dropped to an all-time low and he was very worried about his health.

He wrote a letter to the new headteacher, setting out his concerns about his deadlines and workload and he was referred to Occupational Health.

While under this level of stress, he showed a small class of 15-16 years old an 18 rated film. He had not obtained permission from the students’ parents and he had not asked the school for approval. He was later signed off from work with stress.

During his absence, the head teacher covered his classes and found out about the viewing of the film, which he found concerning given that it has been shown to vulnerable students.

As a result of the incident, disciplinary proceedings were initiated, which ultimately led to Mr Grosset’s being dismissed for gross misconduct.

What did the parties argue?

Mr Grosset argued that it was an error in judgment brought about by the stress he was experiencing as a consequence of his disability. The City of York Council disputed this and maintained that he had shown no remorse for his actions.

The teacher made numerous claims to an Employment Tribunal, but most notably, he claimed discrimination arising from a disability.

What is the law in this area?

Section 15 of the Equality Act 2010 provides that a person discriminates against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of their disability and the person committing the discrimination cannot show that the treatment is a proportionate means of achieving a legitimate aim.

An employer will not be liable if they did not know or could not reasonably be expected to know that the person had a disability.

What was decided in this case?

The Employment Tribunal (ET) upheld the claim of discrimination arising from disability. The ET took note of medical evidence that had not been available to the employer at the time of dismissal and concluded that Mr Grosset has shown the film due to an error of judgment as a result of the stress he was experiencing and this stress arose from his disability. His dismissal, therefore, constitutes an act of discrimination arising from a disability.

The ET accepted that protecting children and maintaining disciplinary standards are legitimate aims, but held that the dismissal was disproportionate. They took into account his disciplinary and performance record and stated a final warning would have been appropriate.

The employer appealed to the Employment Appeal Tribunal, arguing that they were unaware of a link between Mr Grosset’s misconduct and the disability at the time of his dismissal. The EAT dismissed it and the case reached the Court of Appeal.

The Court of Appeal confirmed that a dismissal can constitute unfavourable treatment under section 15 of the Equality Act even if the employer was unaware that the disability was linked to the misconduct.

Comment

Jane Hallas, Head of Education at Ellis Whittam, states ‘The case demonstrates the importance of always considering the risks associated with dismissing an employee who is disabled as the potential compensatory award is unlimited. For teachers that will include substantial losses in respect of their pension.  Legal advice should always be sought when dealing with such situations’.