News Updates

Discrimination arising from disability: an employer's knowledge

Tuesday 5th June 2018

In City of York Council v Grosset, the CA held that a claim of discrimination arising from disability does not require an employer to know that the disability caused the misconduct which then led to the unfavourable treatment.

Mr Grosset was employed as a teacher. As he suffered from cystic fibrosis, reasonable adjustments had been put in place. Following the appointment of a new head teacher who did not initially know about his disability, Mr Grosset’s workload increased significantly. He suffered from stress as a result and his health deteriorated. He was eventually signed off. While under increased stress, Mr Grosset showed an 18-rated film to a class of 15-year olds without parental consent or school approval. During disciplinary proceedings Mr Grosset accepted that he had made a mistake but argued it was an error of judgment resulting from stress. He was dismissed for gross misconduct.

In the ET Mr Grosset argued that his dismissal amounted to unfavourable treatment because of something arising in consequence of his disability. Medical and witness evidence demonstrated that Mr Grosset “was suffering from an impaired mental state due to stress at such a high level that errors of judgment might be expected to arise as a result”. The ET was satisfied that the error of judgment arose in consequence of his disability. While the ET acknowledged that the school’s aims of safeguarding children and maintaining standards were legitimate, the discrimination could not be objectively justified because the Council had failed to demonstrate that dismissal was a proportionate means of achieving those aims. This was particularly so given Mr Grosset’s previous exemplary record and the new head teacher’s failure to implement reasonable adjustments once he became aware of Mr Grosset’s disability. The Council appealed to the CA following an unsuccessful appeal before the EAT.

In the CA the Council argued that Mr Grosset was required to show that the Council actually understood that his error in judgment arose in consequence of his disability. The ET’s findings of fact concluded that the Council did not believe Mr Grosset’s argument that this was the case. The CA considered the following causation questions were raised: did the Council treat Mr Grosset unfavourably because of an identified “something”? And did that “something” arise in consequence of Mr Grosset’s disability?

The CA found that the unfavourable treatment of dismissal resulted from his error of judgment in showing an inappropriate film and it was clear that this error arose in consequence of Mr Grosset’s disability. To require that the Council be aware that the “something” that caused it to act unfavourably was a consequence of his disability would be to effectively reinstate the effects of the decision in Malcolm. The CA also upheld the ET’s findings that the Council had failed to demonstrate that the discrimination could be objectively justified.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.