No. In City of York Council v Grosset, a disabled employee was dismissed for misconduct. The Court of Appeal found that there was discrimination arising from disability even although at the time of the dismissal the employer did not know that the misconduct arose from his disability.
What is discrimination arising from disability?
An employer discriminates against a worker if it treats them unfavourably because of something arising in consequence of their disability. The two questions to be considered were:
- Did the worker’s disability cause, have the consequence of, or result in “something”?
- Did the employer treat the worker unfavourably because of that “something”?
There is a defence if it can be shown that the treatment was justified as being a proportionate means of achieving a legitimate aim.
Mr Grosset was a teacher at a school operated by the City of York Council. He suffers from cystic fibrosis. The Council were aware of this and accepted that he is disabled. Mr Grosset’s workload increased following a change of head teacher and he struggled to cope with the additional demands. He suffered from stress which exacerbated his cystic fibrosis.
Mr Grosset was dismissed for gross misconduct after he showed 15 and 16 year olds a film rated 18. The dismissing panel did not accept his submission that showing the film had been a momentary error of judgment caused by the level of stress he was under.
The Court of Appeal agreed with the decision of the tribunal and the Employment Appeal Tribunal that Mr Grosset had suffered discrimination arising from disability.
- Mr Grosset’s disability had caused his misconduct (the ‘something’ needed for a claim);
- The Council then treated him unfavourably by dismissing him because of his misconduct.
Although the Council was found to have legitimate aims of protecting children and maintaining disciplinary standards, the decision to dismiss could not be justified as a proportionate way of achieving those aims. A written warning would have been sufficient.
The Court of Appeal rejected the Council’s argument that it could not be liable for discrimination arising from disability unless Mr Grosset could prove that they knew that his behaviour was a consequence of his disability.
There is a defence to a discrimination arising from disability claim if an employer did not know, and could not reasonably have been expected to know, that the claimant was suffering from a disability. However, this case confirms that there is no defence to a discrimination arising from disability claim just because the employer did not know the consequences of an employee’s disability.
Before disciplining a disabled employee consider obtaining medical advice on whether their actions could be a consequence of their disability. Knowing the full picture allows a proper assessment to be made of the risks involved and whether disciplining the employee will be justified.
Please get in touch with your usual Brodies contact if you would like to discuss a particular case. Workbox users can access more information at the section on Disability at Work.
On July 2, 2018