Everyone recalls with joy the lessons at school with a supply teacher. You know the ones; you decide to call yourself by a different name for the register and insist on leaning back on your chair watching chaos unfold. After a failed attempt at crowd control and detentions, a vaguely educational DVD gets put on. ‘Back in my day’ it wasn’t a DVD, but a cassette with grainy footage and broken sound played on a VCR the size of a small suitcase. Those were the days. Unfortunately for Mr Grosset, his choice of DVD cost him his job.
Mr Grosset who has cystic fibrosis, was the Head of English at a secondary comprehensive school.
Following his appointment in 2011, Mr Grosset had performed well and the School (who were aware of Mr Grosset’s condition) had put in place a number of adjustments to his workload.
In 2013, the School’s performance standards changed and there was a ‘robust and challenging’ meeting between Mr Grosset and the School’s senior leadership team. Critically, a new Head Teacher was appointed.
The new Head Teacher introduced new initiatives which resulted in additional work pressures being placed on Mr Grosset. Mr Grosset complained about these new initiatives which he considered amounted to unreasonable deadlines, workload and pressure. Mr Grosset, referring to his condition, pointed out that he needed to be able to manage his health issues.
Following a period of sickness absence and a referral to occupational health, Mr Grosset returned to work. In November, over the course of two lessons, Mr Grosset showed a group of ‘vulnerable’ 15-16 year old pupils, the 18 rated film Halloween.
After a further deterioration of his health in November 2013, Mr Grosset was signed off sick due to stress.
During Mr Grosset’s absence, the Head Teacher learned of Mr Grosset’s decision to show the vulnerable students the film. Mr Grosset was suspended. During the disciplinary investigation that ensued, Mr Grosset admitted that the showing of the film was inappropriate and regrettable but claimed he had been affected by stress, which had been contributed to by his cystic fibrosis.
Mr Grosset was dismissed for gross misconduct and brought a claim in the Tribunal alleging:
1. discrimination because of something arising in consequence of disability (namely the increase in his workload);
2. unfavourable treatment (namely dismissal) because of his disability;
3. failure to make reasonable adjustments; and
4. unfair dismissal.
The Employment Tribunal made the following findings:
• due to his condition, Mr Grosset was required to spend up to 3 hours a day exercising to clear his lungs. This restricted the time he had to spend on his suddenly increased workload;
• the additional stress that was caused as a result of his workload had exacerbated his medical condition; and
• it was more likely than not that Mr Grosset had made an error in judgement in selecting the film Halloween as a result of the stress he was under and that stress arose from his disability.
As a result, the Tribunal found that this amounted to unfavourable treatment because of something arising in consequence of disability, which could not be objectively justified and that the dismissal amounted to an act of disability related discrimination.
Mr Grosset’s claim for failure to make reasonable adjustments and ‘ordinary’ unfair dismissal failed the latter because showing the film was a clear and obvious act of misconduct.
The Council appealed the decision (and Mr Grosset cross appealed the decision in relation to his claim for unfair dismissal). The Employment Appeal Tribunal held that the Tribunal had made the correct decision in respect of all claims. They endorsed the Tribunal’s findings.
The result means that Mr Grosset was awarded an eye watering £180,000, which could rise to as much as £500,000 after a detailed assessment of his pension losses are undertaken. Ouch.
In addition, the senior leadership team of the school have been ordered to undergo training in disability in the workplace, and the Council must take specific measures to ensure appropriate support is in place for other disabled employees.
What does this mean for you or your business?
This case is an important reminder to employers to consider the wide ranging affects that medical conditions can have on staff and the decisions they make. We must not forget that the Tribunal upheld the fact that Mr Grosset had not been unfairly dismissed. Showing an 18 rated film to 15-16 students was never going to be acceptable. However, if there is an underlying medical condition amounting to a disability under the Equality Act 2010, then serious consideration should be given to whether the individual’s actions or decision making was affected by their disability. If so, then it’s a brave employer who fails to take this into account when reaching a decision.
What do you need to be doing now?
Ensure your senior managers and other employees have had adequate training on managing disability in the workplace.
Make sure you are aware of any conditions affecting your staff and that adequate consideration has been given to whether any adjustments need to be made in order to alleviate the effect of any disability.
Before any decisions are made, give serious consideration to whether the actions which have resulted in the relevant conduct are, or could, be related to a disability.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.