In City of York Council v Grosset the Court of Appeal upheld an Employment Tribunal decision that an employer discriminated against a disabled employee by dismissing them for misconduct which arose in consequence of the employee's disability.
This was the case despite the fact that the employer did not know of the connection between the disability and the misconduct.
Under section 15 of the Equality Act 2010 (EqA) an employer discriminates against a disabled employee if they treat them unfavourably because of something arising from, or in consequence of, their disability (a section 15 claim).
A section 15 claim is only possible where the employer knows about the disability – this can be actual or constructive knowledge. It is also open to an employer to objectively justify this form of discrimination. To do so they need to demonstrate that the treatment is a proportionate means of achieving a legitimate aim.
In this case, the question was whether a section 15 claim was made out where the employer knew that the employee had a disability but did not know that the misconduct for which the employee was dismissed had arisen in consequence of that disability.
The Claimant was a senior teacher who suffered from cystic fibrosis. The Respondent was aware of the Claimant's disability.
In the course of 2013, the Claimant's responsibilities were redesigned, which, he said, left him facing an unacceptable workload and unachievable deadlines. He complained to the Head Teacher, referencing his disability and the need to manage his health. Later that year, during the course of a lesson, the Claimant showed the 18-rated horror movie "Halloween" to a class of 15 and 16 year old pupils. The Claimant subsequently went off sick on the grounds of stress. During the Claimant's sickness absence, the "Halloween" incident came to light and a disciplinary process was triggered.
The Claimant accepted that it was not right to show the film to the pupils, although the disciplinary panel did not consider that he was remorseful about the episode. The Claimant maintained that his judgement had been impaired by stress, which was connected to his disability. The disciplinary panel did not accept his explanation. The Claimant was dismissed for gross misconduct and he went on to bring a section 15 claim and a claim for unfair dismissal. This briefing considers the section 15 claim only.
Employment Tribunal decision
The Employment Tribunal (ET) dismissed the claim for unfair dismissal but upheld the section 15 claim. They concluded that the dismissal of the Claimant was unfavourable treatment. The next question was whether the dismissal was because of something arising from, or in consequence of, the Claimant's disability. The ET reviewed the medical evidence and concluded that it was probable that the Claimant's judgement had been impaired as a result of stress which largely arose from his disability. The ET concluded that a section 15 claim did not require a direct causal link between unfavourable treatment and the disability itself. It was enough that the unfavourable treatment was caused by something which arose as a consequence of a disability.
Having found that the dismissal was discriminatory, the ET turned to the question of whether it could be justified. The ET decided that it could not. Whilst it some cases, dismissal for a serious error of judgement would be justified, that was not the case here. Notably, the ET was persuaded by: (i) the compelling medical evidence (even though this evidence was not available to the employer at the time of dismissal); and (ii) the fact that the Respondent had failed to make any reasonable adjustments for the Claimant. The Claimant was awarded damages of £646,663.
The Respondent's appeal was dismissed by the EAT who held that it did not matter whether they knew that the Claimant's actions were caused by stress arising from his disability. The test was an objective one and the ET was entitled to take into account medical evidence which the employer did not have at the time of dismissal. Provided the employer knew that the employee was disabled (as they did here), a claim could succeed where unfavourable treatment was meted out because of something which, as a point of fact, arose in consequence of the disability.
The Respondent appealed again.
Court of Appeal decision
The Court of Appeal dismissed the Respondent's appeal, concluding that a section 15 claim involves a two-stage test.
(i) Did the employer treat the employee unfavourably because of "something"?
The first stage applies a subjective test. It requires the ET to look at what was in the mind of the employer at the time of the treatment in question. In this case, the Claimant showed an 18-rated film to underage children. This was the "something" which led to the dismissal.
(ii) If yes, did that "something" arise in consequence of the employee's disability?
The second stage applies an objective test. It requires the ET to consider whether there was a causal link between the disability and the "something". Here, the ET found that there was such a link: the Claimant showed the film as a result of severe stress which arose from his disability. Crucially, the Court said there was nothing in the EqA which required the employer to have known at the time that the "something" arose in consequence of the disability.
The Court also agreed with the ET's approach to objective justification: the ET was entitled to find that the dismissal was disproportionate in the circumstances of the case. In particular, it was entitled to give weight to the fact that the employer had failed to make reasonable adjustments which, had they been made, would have reduced the Claimant's stress levels.
Where does this leave employers?
If you do not know that an employee is disabled at the time of the alleged unfavourable treatment then you will have a defence to a section 15 claim. Bear in mind, however, that even where you don't have actual knowledge of the disability, you could still be deemed to have constructive knowledge. Therefore, if there is a concern that the employee might be disabled, it would be sensible to probe this issue further before taking the action in question.
Once you have knowledge of a disability, then it does not matter whether you know that the action which triggered the unfavourable treatment arose in consequence of the disability. In practice, this means it would be wise to pause to consider whether your treatment of employee is based on "something" (e.g. misconduct, poor performance, absence levels) which could potentially have arisen out of their disability. Where there is a potential link, then it would be wise to step back from the treatment in question to consider obtaining medical evidence on the point and also whether any reasonable adjustments might alleviate the problem.
If you to decide to proceed with the treatment then you should clear that: (i) you have a legitimate aim which is legal, not inherently discriminatory and represents a real, objective need; and (ii) the treatment is a proportionate means of achieving that aim (i.e. it is reasonably necessary and there is no less discriminatory means available)