Hello and welcome back to your weekly case law update. Last week we had two cases for you, one on employment status and another about race and religious discrimination. This week we have a disability discrimination case for you that also concerns unfair dismissal and gross misconduct. It is one we actually covered in our lighter side of the news segment as a topical Halloween update.
City of York Council v Grosset
Whereas last week’s case concerned direct discrimination and harassment, this week’s case concerns unfavourable treatment. Unfavourable treatment for disability discrimination is governed by Section 15 of the Equality Act 2010, which states:
A person discriminates against a disabled person if:
They treat the disabled person unfavourably because of something arising in consequence of their disability, and they cannot show that the treatment is a proportionate means of achieving a legitimate aim. Section 15 does not apply if they show that they did not know, and could not reasonably have been expected to know, that the person discriminated against had a disability.
In light of this, we have two questions this week:
Can a conduct dismissal be an unfavourable treatment if the employer was not aware the conduct was related to a disability?
Can a dismissal be in the range of reasonable responses and therefore fair, but, also unfavourable treatment and discriminatory?
Mr Grosset, the Claimant, was Head of English for the Joseph Roundtree School which was under the control of the City of York Council, the Respondent. The Claimant suffered from cystic fibrosis, a chronic intestinal and respiratory condition, which was controlled through a strict daily three-hour exercise regime. As cystic fibrosis greatly weakens the immune system of sufferers, the effects of stress on a person suffering from cystic fibrosis can severely impact their long-term health.
The Claimant helped the Respondent achieve its best ever GSCE English results. The Respondent then changed Head Teacher, who was unaware of the Claimant’s condition. The new Head changed processes at the Respondent and this increased the Claimant’s workload and placed greater scrutiny on teacher performance. The Claimant wrote to the Respondent highlighting how the increased workload and subsequent stress was affecting his condition.
The Respondent did not make any reasonable adjustments and a referral to occupational health was delayed. The Claimant was feeling stressed, had fallen behind on his exercise regime and a recent medical check-up had found his lung function was at its lowest ever level and a double lung transplant could be required if his condition deteriorated further. Unsurprisingly this news did not help his stress.
The Claimant was then put in charge of a class of 15/16-year-old GCSE students who required extra nurturing. Some of the students in the class had displayed suicidal thoughts and incidents of self-harm. As part of a lesson on narrative plots, the Claimant showed the students the 18 rated horror film, Halloween. The Claimant did not obtain the permission of parents or the school before showing this film.
A further deterioration in health meant the Claimant went off sick. The Head covered the Claimant’s lessons and learned that the nurture class had been shown the 18 rated film. The Claimant was suspended and a disciplinary was held.
The Claimant expressed regret at showing the film and stated he was unaware that some children in the class were suicidal/self-harm risks. He said the incident was due to a lapse in judgment due to the stress caused by workload and cystic fibrosis.
The Claimant was dismissed and brought claims for unfair dismissal and disability discrimination. The ET – headed by EJ Forrest, Phil’s supervisor and mentor at Humberside Law Centre – held that the Claimant’s dismissal due to disability-related conduct amounted to unfavourable treatment. However, it also held that the dismissal was fair as it fell within the range of reasonable responses.
The ET held the dismissal was fair because the Respondent, who had discounted disability, would have reasonably held showing the film was gross misconduct and dismissal was a reasonable sanction to take.
However, by failing to make adjustments for and discounting the cystic fibrosis-related stress as the reason for the conduct, the Respondent had been unreasonable and thus the disability discrimination claim succeeded. Had the adjustments been made, the film incident would not have happened. Had the Respondent realised the conduct was disability-related, the dismissal would not have happened.
The Respondent appealed the discrimination finding and the Claimant appealed the unfair dismissal finding. The EAT rejected both appeals. The Respondent appealed to the Court of Appeal. The Respondent stated that they could not have treated the Claimant unfavourably as they did not connect the conduct to the Claimant’s disability and were unaware of any such link.
The CoA rejected the appeal. It held that the ET was right to find that the Respondent could not use an inability to connect the conduct with the disability as a defence. Whether the Respondent was aware of the link between the conduct and disability was irrelevant and the treatment was therefore unfavourable.
The takeaway points:
Yes, employers can now be liable if they do not connect that conduct was related to disability and thus sanction the employee because of that conduct. Whether the unfavourable treatment is done consciously or sub-consciously it is still unfavourable treatment.
If there is a causal link between conduct and disability then the employer could be liable for any unfavourable treatment. Therefore, when handling similar issues, it is best to investigate how the disability could impact an employee’s conduct/performance to avoid any unconscious discrimination.
Yes, this case shows a dismissal can be procedurally fair but also discriminatory. In this case, failing to link conduct to disability meant dismissal was a reasonable response. However, this is a hollow victory as the discrimination element of the claim poses a greater financial liability. Here, the Claimant was awarded a six-figure sum due to a high injury to feeling award – his cystic fibrosis and stress caused severe lung deterioration – and also final salary pension loss.