Employee Sacked for Gross Misconduct Wins Disability Discrimination Claim
An employer has been found to be guilty of discrimination arising from disability even though the medical evidence available to it at the time showed no link between the employee’s disability and the misconduct for which he was dismissed.
An employee’s dismissal for misconduct was discrimination arising from disability, even though the employer had reasonably concluded on the evidence available to it at the time of dismissal that the employee’s misconduct was not connected with his disability. Later evidence adduced before the employment tribunal indicated there was a link and the employment tribunal had been entitled to take this into account when deciding that his disability was a cause of his misconduct. The tribunal had also been entitled to take the later medical evidence into account when deciding that the employer had not objectively justified the employee’s dismissal.
In City of York Council v Grosset, Mr Grosset was Head of English at a school operated by York Council. He suffered from cystic fibrosis. His employer was aware of this and conceded that it was a disability. He had to spend up to three hours a day doing physical exercise in order to clear his lungs. His workload increased following a change of head teacher. As a result of his condition, he struggled to cope with the additional demands placed on him. He suffered stress, which in turn exacerbated his cystic fibrosis. During this period, Mr Grosset took two lessons of 15 and 16-year olds in which he showed the 18-rated film Halloween. Following a disciplinary investigation he was dismissed for gross misconduct. The medical evidence available to the employer at the time of dismissal did not suggest a link between his misconduct and his disability.
He claimed unfair dismissal and disability discrimination. The employment tribunal found that the dismissal was fair, but upheld the claim of discrimination arising from disability. The medical evidence produced by Mr Grosset at the tribunal hearing indicated there was a link between his misconduct and his disability: it was more likely than not that he had made the error of judgment as a result of the stress he was under and that stress arose from his disability. It therefore concluded that the error of judgment for which he was dismissed arose as a consequence of his disability. It also considered that the employer had not shown that the dismissal was objectively justified.
The Council appealed to the Employment Appeal Tribunal (EAT), arguing that it had reasonably concluded that there was no connection between Mr Grosset’s misconduct and his disability and therefore causation was not made out.
The EAT dismissed the appeal.
The tribunal had to determine on an objective basis whether the misconduct arose as a consequence of Mr Grosset’s disability. It was therefore permissible for the tribunal to take into account the later medical evidence to ascertain as a matter of fact whether the misconduct was linked to his disability. The employer’s subjective conclusion on this question was not relevant i.e. the employer could not argue it did not know about the consequences of the employee’s disability in order to escape liability. It was sufficient that the employer knew of the disability.
The EAT also ruled that the tribunal had been right in taking into the account the later medical evidence when deciding that Mr Grosset’s dismissal was not proportionate to achieving the Council’s stated aims of protecting children and ensuring disciplinary standards.
An employer can still be guilty of discrimination even where it reasonably concludes that there is no link between an employee’s disability and their misconduct. The Council is seeking permission to appeal the decision to the Court of Appeal but in the meantime employers need to tread carefully wherever they are aware of an employee’s disability. They should consider obtaining further evidence on the question of whether there is any link, but even then it is always open to the employee to adduce evidence of a link in the employment tribunal proceedings. Employers may therefore find themselves having to objectively justify their actions. This involves identifying the aims they are seeking to achieve, ensuring that they are legitimate and that they cannot achieve them in a less discriminatory way.
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