Employer unaware of link between misconduct and disability still liable for discrimination


3 mins

Posted on 11 Jun 2018

An employer who dismissed an employee for gross misconduct has been found liable for discrimination arising from disability, even though it was unaware that the employee’s conduct was a consequence of his disability.  

Facts

In City of York Council v Grosset, Mr Grosset was Head of English at a school operated by York Council. His employer knew he suffered from cystic fibrosis and conceded that he was disabled. 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 and, 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 suggested no link between his misconduct and his disability.

Mr Grosset claimed unfair dismissal and disability discrimination. His unfair dismissal claim failed, but the employment tribunal upheld his claim of discrimination arising from disability.  Mr Grosset produced medical evidence at the tribunal hearing indicating that there was a link between his misconduct and his disability.  The tribunal concluded that the error of judgment for which he was dismissed arose as a consequence of his disability and that his dismissal was not objectively justified.

The Employment Appeal Tribunal dismissed the employer’s appeal the employer appealed to the Court of Appeal.    

Decision

The Court of Appeal dismissed the employer’s argument that it could not be liable unless Mr Grosset could show that it appreciated that his behaviour was a consequence of his disability.  It ruled that in a claim of discrimination arising from disability, an employer does not have to know that the conduct (or other thing) which causes it to treat an employee unfavourably is a consequence of the disability.  If there is a causal link, that is sufficient.  

Implications 

An employer can be liable for discrimination arising from disability, even where it is unaware of any link between disability and the conduct (or other matter) which causes it to treat an employee unfavourably.  Employers will wish to obtain detailed evidence on whether there is any link, but even then it will always be open to the employee to adduce evidence in subsequent employment tribunal proceedings demonstrating such a link. Employers should therefore also consider whether they can objectively justify the unfavourable treatment, so that they have a defence to the claim.  This involves identifying the aims they are seeking to achieve, ensuring that they are legitimate and that they cannot be achieved in a less discriminatory way.  

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