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Discrimination arising from disability: employers will be in trouble if they don’t realise that conduct is caused by a disability

At this time of year, teachers up and down the country are tearing their hair out as their pupils sit through all manner of exams. This will not be the case for one Mr Grosset, who will be feeling relieved that the Court of Appeal has reaffirmed the EAT decision last year that he had been subject to unfavourable treatment under section 15 of the Equality Act after being dismissed for gross misconduct.

Section 15 refers to discrimination arising from disability. This requires that a claimant’s disability resulted in their employer treating them unfavourably as a result of a disability. As with direct disability discrimination, an employer cannot discriminate if they are not aware of the disability and could not reasonably expect to know of such disability. However, this case has clarified the potential grey area of not knowing that certain actions or behaviours have arisen from a disability.

Mr Grosset was the Head of English at a secondary school in York. He had cystic fibrosis, which required him to follow a time-consuming exercise regime in order to clear his lungs. The school knew of his requirements and made reasonable adjustments to support him. With a change of leadership at the school, some of these adjustments were dis-applied and his workload increased as a result. This exacerbated his condition and led to him suffering from stress. During this period of stress, he made the mistake of showing an 18-rated film to his year 11 students before it eventually caused him to be signed off work. Whilst off work, the Head Teacher was made aware that he had shown the film to the students and Mr Grosset was suspended from the school. He was then summarily dismissed for gross misconduct.

Mr Grosset subsequently brought a claim which alleged that he suffered unfavourable treatment because of his disability, his employer had failed to make reasonable adjustments, and also that he was unfairly dismissed. The latter two of these claims failed because the act of showing an 18-rated film to 15 and 16 year old students was a clear act of misconduct. Nevertheless, whilst it accepted that the school was unaware that the misconduct was linked to Mr Grosset’s disability, it was found that the tests under section 15 of the Equality Act had been satisfied. Mr Grosset’s actions stemmed from the stress he suffered, and this stress arose as a result of his disability. The decision to dismiss him was therefore a disproportionate response and amounted to unfair treatment. This decision was reached by the Employment Tribunal, and has since been confirmed by both the EAT and Court of Appeal.

This case indicates that even if an employer reasonably concludes after consideration that its actions against an employee are not related to that employee’s disability discrimination can still occur. The test in this type of situation is an objective rather than subjective one. 

What should you be doing now?

It would be worthwhile to ensure that your staff have adequate training on managing disability in the workplace. A system of general guidance to provide understanding for employees could limit the risk of a misunderstanding occurring. It is also worthwhile considering what adjustments can be made to alleviate the effect of any disability. It is of note that in the above case, the whole incident could have been avoided if reasonable adjustments were made to ensure Mr Grosset was not unduly stressed.

Above all, seriously consider whether a person’s conduct might have been caused by, or related to, a disability. If so, ask yourself what a proportionate response to their action might be. Have you done all you can to allow them to be on an equal footing with their peers?

What does this mean for you or your business?

This case stresses the importance of understanding how people’s disabilities might affect them. It is no longer good enough to state that you are unaware of the effect of people’s disabilities when making important decisions. Ensure that you check whether actions are related to a disability and apply what you learn when making any decisions to ensure that the outcome is fair for all involved.

If you don’t, you could suffer the same fate as the City of York Council. They now have to foot a bill which could hit £500,000 for not realising that Mr Grosset’s actions stemmed from his disability.

 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.