Is a knowledge of the consequences of disability required?

Under the Equality Act, an employer discriminates against an employee if it treats the employee unfavourably because of something arising in consequence of the employee’s disability and it cannot show that the treatment is a proportionate means of achieving a legitimate aim.  However, in a misconduct dismissal must the employer know that the conduct arose in consequence of the disability?

Mr G is a teacher and suffers from cystic fibrosis, of which his employer was aware.  Various adjustments were made to accommodate his disability, but unfortunately no proper record was kept of the position and it was lost sight of when a new head teacher took over the school.

Mr G felt was subjected to an increased workload and pressures which he found he could not cope with. He was unable to absorb the increased pressure of work by working in his own time, due to the time-consuming exercise regime he has to pursue to manage his health issues. He became stressed under this increased pressure of work; his health suffered badly; and that in turn increased the level of stress, as he became worried not only about not coping at work but also that his health was deteriorating.  During this time, Mr G showed a class of 15-year-olds the 18-rated horror film, Halloween. He did not get approval for this from the school or consent from the pupils’ parents. When the school learned about this, Mr G was subjected to a disciplinary hearing and was dismissed for gross misconduct.

In the disciplinary proceedings, Mr G accepted that showing the film was inappropriate and regrettable but argued that his judgement had been affected by stress, contributed to by his cystic fibrosis.  The employer did not accept that there had been a momentary error of judgement caused by stress, as there were several points at which Mr G might have stopped the film.

Mr G brought a number of claims in the Employment Tribunal, including a claim of discrimination arising from disability which was upheld.  It found that the dismissal was an act of unfavourable treatment. The Tribunal found that it was more likely than not that Mr G had made an error of judgment in selecting Halloween as a result of the stress he was under; showing this film was not an error he would otherwise have made; and, in very large part, that stress arose from his disability.

The Tribunal went on to find that the dismissal was not justified.  Although the school had legitimate aims of protecting children and ensuring that disciplinary standards are maintained, dismissal was disproportionate in this case.  The Tribunal found that Mr G’s remorse was sincere, that he appreciated the seriousness of what he had done and that there was no real risk of any repetition of such error of judgment if the undue level of stress to which he had been subject was removed.

The matter found its way to the Court of Appeal.  It found that the employer dismissed Mr G because he showed the film and that Mr G showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work.  It rejected the argument that the employer was not liable unless Mr G could show that the employer had appreciated that his behaviour was a consequence of his disability.  The Court noted that there is no requirement that an employer must be aware, when subjecting an employee to unfavourable treatment (such as dismissal) that the employee’s conduct arose in consequence of the employee’s disability.

Comment

This case does not lay down any new principles.  However, it is a reminder to employers to tread cautiously when considering dismissing an employee for conduct reasons where they know that the employee suffers from a condition that is a disability under the Equality Act, as there is a risk that there is a link between the conduct and the disability.  The employer should consider whether to seek medical evidence before reaching a decision.

As the Court of Appeal noted, “If the defendant does not know that the claimant suffers from a disability, he has a defence. But if he does know that there is a disability, he would be wise to look into the matter more carefully before taking unfavourable action.”

City of York Council v Grosset 

21 May 2018

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