Knowledge of the consequences of disability?

The Court of Appeal has recently considered whether it was necessary for an employer to be aware of the consequences of a disability, to establish liability for discrimination arising from disability.

City of York Council v Grosset [2018] EWCA Civ 1105

Facts

Mr Grosset was the head of English at a secondary school operated by the Council. He has cystic fibrosis, which was exacerbated by stress caused by the additional demands of an increased workload. He was dismissed for gross misconduct after showing a class of 15 and 16 year-olds an 18-rated film. Mr Grosset claimed that this was a momentary error of judgement caused by the level of stress he was under.

An employment tribunal dismissed his claim for unfair dismissal, but held that he had suffered discrimination arising from disability. Medical evidence available to the council at the time of dismissal did not suggest a link between Mr Grosset’s misconduct and his disability, but further evidence available by the time of the tribunal hearing did suggest that there was such a link. The tribunal was satisfied that Mr Grosset’s disability had caused or resulted in the act of misconduct, meaning that the Council had treated him unfavourably (by dismissing him) because of something arising in consequence of his disability. Provided the employer is aware of an individual’s disability, it is not necessary for the employer to know of the link between the misconduct and the disability. The Council’s appeal was dismissed by the Employment Appeal Tribunal.

Court of Appeal decision

The Court of Appeal also dismissed the council’s appeal. It rejected the argument that the council was only liable if the claimant could show that it was aware of the link between the misconduct and his disability; it was sufficient that such a link had been established by the medical evidence. The court further held that the discrimination could not be justified: Mr Grosset’s dismissal was not a proportionate means of achieving a legitimate aim. In upholding the tribunal’s decision on justification, the court noted that had the council met its obligation to make reasonable adjustments and reduced the work pressure on Mr Grosset, he would not have been subjected to the same level of stress.

Consequences

This decision confirms that employers can be found liable for disability discrimination, even when they are unaware of the link between an individual’s actions and their disability. It is always advisable for employers to obtain medical evidence to establish the effects and consequences of an individual’s disability, including any potential effect on their behaviour. It is also more likely that an employer will be able to show justification in defence of such a claim if they have fully complied with the duty to make reasonable adjustments.

The content of this article is for general information only. For further advice, please contact Liz Stevens or another member of Birketts’ Employment Law Team.

This article is from the June 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2018.

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