Can dismissing an employee for gross misconduct amount to discrimination arising from a disability if the employer is unaware that the misconduct is connected to the disability itself?

This is the question recently addressed by the Court of Appeal in the case of City of York Council v Grosset.

Mr Grosset was a teacher and head of his department. He had Cystic Fibrosis which his employer was aware of. They also accepted that the cystic fibrosis amounted to a disability for the purposes of the Equality Act 2010.

Mr Grosset was dismissed for gross misconduct for showing the 18 rated film ‘Halloween’ to a class of 15 and 16 year olds. When this was discovered by the school, he was disciplined and dismissed.

Mr Grosset argued that his employer had dismissed him for reasons associated with his disability. His employer disagreed. Mr Grosset stated that when the new head teacher had been appointed, he had increased Mr Grosset’s workload. Mr Grosset struggled to cope with this increased pressure as a result of his condition.This resulted in him suffering from stress. In turn, the stress exacerbated the symptoms of Mr Grosset’s disability.It was during this period of high stress that Mr Grosset had exercised poor judgment and shown the film to the pupils.

Mr Grosset therefore brought claims in the Employment Tribunal for unfair dismissal and discrimination arising from disability.

Medical evidence at the time of the Tribunal hearing showed there was a causal link between the misconduct (showing the 18 rated film) and Mr Grosset’s disability, although the medical evidence obtained by Council at the time of dismissal suggested otherwise.

The case progressed through the Courts and ultimately landed in the Court of Appeal. The Court of Appeal held that there are two causative issues in a Section 15 claim:

  • Whether the employer treated the employee unfavourably because of an identified “something”;
  • Whether that ‘something’ arose in consequence of the employee’s disability.

Mr Grosset was dismissed because he showed underage pupils an 18 rated film. This was the ‘something’ identified. In deciding whether that arose in consequence of his disability, an objective test needed to be applied.

The Employment Tribunal had found that Mr Grosset had shown the film due to the high stress he was suffering. The fact the employer did not know that the misconduct was connected to his disability was irrelevant. Although no unfair dismissal had occurred, the employer being able to show that their decision to dismiss came within a band of reasonable responses, they were found to have discriminated against him in dismissing him.

The employer attempted to argue that their decision had been justified but were unsuccessful in their defence. The Court concluded that if the Council had made reasonable adjustments to Mr Grosset’s workload this would have reduced the amount of stress he was under and the ‘film incident’ would have been unlikely to have occurred.

The outcome of this case illustrates that employees can successfully claim discrimination arising from disability even when their employer has reasonably concluded on the evidence that the act of misconduct is not linked to the employee’s disability.

Employers who are considering disciplining a disabled employee should always think about obtaining medical evidence to assess whether the alleged misconduct is connected to the employee’s disability. In doing so, it may avoid taking action that would otherwise result in a discrimination claim or at least be alive to the potential risk of a claim if it proceeds to discipline the employee accordingly.

If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Angela Gorton in our Employment Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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