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The Court of Appeal upheld an Employment Tribunal’s decision in City of York Council v Grosset where an employer dismissed a disabled employee for misconduct caused by his or her disability. The dismissal can amount to unfavourable treatment because of something arising in consequence of disability (under Section 15 of the Equality Act 2010) even if the employer was not aware that the disability caused the misconduct.
The Claimant, a senior teacher, suffered from cystic fibrosis which is classed as a disability under the Equality Act 2010. The Claimant was employed in one of the Council’s schools and reasonable adjustments had been agreed, however these were not recorded properly. Following the appointment of a new head teacher the Claimant’s workload increased.
The Claimant became very stressed because of the increased work load. During this period, he showed an 18-rated film to a class of 15 and 16 years olds without the school’s approval or permission from parents. As a result, the Claimant was summarily dismissed for gross misconduct.
During the disciplinary proceedings, the Claimant accepted showing the film was inappropriate. He claimed this had happened due to the high level of stress he was under at the time; as a result of his disability. The School did not accept the Claimant’s explanation and the Claimant’s appeal against his dismissal was not upheld.
In the Employment Tribunal, the Claimant’s claim for unfair dismissal was unsuccessful, however the Tribunal upheld the Claimant’s discrimination arising from disability claim under Section 15 of the Equality Act. The Employment Appeal Tribunal (“EAT”) did not change the Tribunal’s findings.
The Council appealed further to the Court of Appeal. Section 15 of the Equality Act provides that discrimination arising from disability occurs if:
Section 15 does not apply when an employer did not know, and could not reasonably have been expected to know that B had a disability.
The Court of Appeal held it did not matter that the Respondent did not appreciate the Claimant’s behaviour in showing the film was caused by stress arising from disability. This was an objective assessment for the Tribunal to make. The Tribunal had found the Claimant’s dismissal was due to him having showed pupils an inappropriate film as a result of the exceptionally high stress he had been subject to, which arose from the effect of his disability.
As the Respondent had not implemented the reasonable adjustments they could not objectively justify the unfavourable treatment. As a result, the tribunal was entitled to take the view that the incident would not have occurred if reasonable adjustments had been made; as the Claimant would not have been subjected to the same level of stress.
Employers should bear in mind that if they do not know and cannot reasonably be expected to know that the Claimant suffers from a disability, then they have a defence. Despite this, employers should be careful. If there is concern that an employee may be disabled, the employer should look into this further before deciding to take any action, such as in this case. If an employer is aware that an employee has a disability, then they need to look into matters much more carefully before deciding to take action such as the above. It would be sensible for an employer to obtain medical evidence before deciding to take any action against the employee and also consider whether any reasonable adjustments may result in any improvements.
If you are having a similar issue and would like some advice, our Employment team would love to talk to you. Please call them on 0113 849 4000 or email email@example.com.