On Friday 17 August 2018 HM Revenue and Customs (HMRC) issued a further update to social care providers in the Social Care Compliance Scheme (SCCS).
The Court of Appeal has given a Judgement in City of York Council v Grosset that a dismissal of an employee with a disability can amount to unfavourable treatment under Section 15 of the Equality Act 2010, even if the employer does not know that there is a connection between the disability and the misconduct.
Under the Equality Act 2010 (EqA), discrimination arising from a disability occurs when the employer treats the employee unfavourably because of something arising in consequence of the employee’s disability. The consequence of the disability varies depending on the disability and individual effect on the employee. Some consequences may be obvious, whereas others may not be.
If the unfavourable treatment occurs because of something arising in consequence of the disability, it will be unlawful unless it can be objectively justified, or unless the employer did not know or could not reasonably have been expected to know that the employee had a disability.
Mr Grosset was a teacher and Head of English at a school operated by the City of York Council. He suffers from cystic fibrosis. His employer was aware of this and reasonable adjustments were made for him, though were unfortunately not properly recorded. This meant that when a new headteacher joined the school, Mr Grosset was subject to an increased workload.
Whilst under an increased level of stress, Mr Grosset showed an 18-rated film to a class of 15 and 16-year-old students without approval or permission, and the employer started disciplinary proceedings. Mr Grosset accepted that he should not have shown the film, but that he had done so in error due to stress. This was not accepted, and Mr Grosset was dismissed for gross misconduct.
Mr Grosset brought tribunal claims for unfair dismissal and disability discrimination. His disability discrimination claim was brought under Section 15 of the EqA, arguing that his dismissal amounted to unfavourable treatment because of something arising in consequence of his disability; that he had been dismissed because he showed the film due to stress as a result of his disability.
The Employment Tribunal dismissed Mr Grosset’s unfair dismissal claim but upheld his claim regarding discrimination. The employer, therefore, appealed to the Employment Appeal Tribunal and then further to the Court of Appeal.
The CA held that when considering discrimination arising from a disability claim a tribunal must consider the following:
- Whether the employer treated the employee unfavourably because of the identified “something”.
- Whether the “something” arose due to the employee’s disability.
In this case, the “something” was Mr Grosset showing the film, and the unfavourable treatment was the dismissal. Mr Grosset had shown the film due to being under high levels of stress, which arose from the effect of his disability.
The Court of Appeal explained that there was no requirement that an employer should be aware, when deciding to subject the employee to unfavourable treatment, that the “something” arose because of their disability. The employer need only be aware, or ought to reasonably be aware, that the employee has a disability.
The Court of Appeal looked at the decision that the Tribunal had made in the first instance. A strong factor in the Tribunal’s original decision was that dismissal was not proportionate as if the Council had made the reasonable adjustments required, Mr Grosset would not have been subjected to the same level of stress. This is an important consideration on the facts.
Mr Grosset’s claim was therefore successful as the employer could not show that they did not have knowledge of Mr Grosset’s disability and he satisfied the test to bring a claim.
This case demonstrates that an employer may be liable for discrimination arising from disability even when they have obtained evidence that there is no link between the employee’s action and their disability. The defence in relation to knowledge of disability does not extend to the consequences of the disability. Therefore, caution should be taken by employers in relation to management of staff who have a disability. This case also serves as a reminder that employer's should ensure that they make reasonable adjustments where appropriate and possible.
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