Is it discriminatory to dismiss an employee if you do not know the misconduct is related to their disability?
Yes, held the Court of Appeal in City of York Council v PJ Grosset, unless the unfavourable treatment can be justified.
Under the Equality Act 2010 there are four types of disability discrimination. This case concerned discrimination arising from a disability under section 15(1) of the Equality Act 2010, where a person (A) discriminates against a disabled person (B) if:
(1) A treats B unfavourably because of something arising in consequence of B’s disability; and
(2) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
However, under section 15(2) of the Equality Act 2010 it is not discrimination if A is able to show that they did not know, and could not reasonably have been expected to know, that B has the disability (a “knowledge defence” if you like).
Mr Grosset was a teacher, employed by City of York Council (the Council).
He suffered from cystic fibrosis and the Council was aware of his disability. Reasonable adjustments were made to accommodate his disability initially, but when a new Head Teacher took over, no record was kept of his disability – it was, in effect, forgotten about.
It was Mr Grosset’s case that he was then subject to an increased workload which he found difficulty coping with, particularly as he was unable to do any additional work in his spare time owing to the time-consuming home exercise routine he had to undertake to keep his illness under control. It was while suffering under this pressure, that Mr Grosset showed a class of 15-year-olds an 18 rated horror film, without the consent of the pupils’ parents or the school. Disciplinary charges were brought against him and he was dismissed for gross misconduct.
Mr Grosset brought claims in the Employment Tribunal including a claim for discrimination arising from a disability, arguing that his actions resulted from an error of judgement, caused by the high level of stress he was under at the time in consequence of his disability.
The Employment Tribunal was satisfied that the showing of the film was the result of an error of judgement, which was a result of his disability and held that the Council had discriminated against Mr Grosset because of “something” arising in consequence of his disability. The Tribunal held that it was not a requirement for the Council to be aware that the “something” (i.e. the showing of the 18 rated film) arose in consequence of his disability in order for the Council to be liable.
The Council appealed the decision, first to the Employment Appeal Tribunal and then to the Court of Appeal, arguing (among other grounds of appeal) that to prove discrimination arising from a disability, Mr Grosset had to show that the Council knew that his behaviour in showing the film arose in consequence of his disability.
The Court of Appeal agreed with the Employment Tribunal and stated that there was no requirement that the Council be aware that the ‘something’ (the showing of the 18 rated film) arose in consequence of Mr Grosset’s disability in order to be liable. The Court held that the lack of knowledge “defence” referred to under section 15(2) refers to lack of knowledge of the disability only.
Points to note
This decision has now settled the area of law surrounding the interpretation of section 15 of the Equality Act.
The Council was aware of Mr Grosset’s disability and, knowing this, the Tribunal thought the Council should have inquired into the matter more carefully before taking unfavourable action against him. It is a helpful reminder to employers to act with caution when considering disciplinary or other formal action in relation to an employee with a disability.
Action to take
1. Ensure that managers or supervisors who make decisions about disciplinary issues are trained in or have knowledge of the requirements of the Equality Act.
2. Consider introducing an Equal Opportunities Policy into your staff handbook.
3. Seek advice if you are in a similar situation. We regularly advise employers and employees in respect of these types of issue.