Dismissing disabled employees – when s15 of the Equality Act bites

City of York Council was guilty of discrimination arising from a disability pursuant to section 15 of the Equality Act 2010 as a result of dismissing a disabled employee for misconduct. 

Mr Grosset was employed as a teacher and Head of English by the Council. Mr Grosset suffers from cystic fibrosis for which the Council accepted he was a disabled person under the Equality Act 2010. Following a change of headteacher, he suffered stress which in turn exacerbated his cystic fibrosis.  Around the same time and on 2 separate occasions, the Head of English played the film Halloween to groups of 15 and 16 year olds which lead to the council dismissing him for misconduct.

Mr Grosset tried to argue this was a momentary lapse of judgment as a result of his medical condition but the Council did not accept this.  Instead the Council concluded that he could have stopped the film at any time and that he lacked remorse. The Council also concluded that the medical evidence available at the time did not show any link between the misconduct and Mr Grosset’s medical condition.

Subsequent medical evidence was made available at the hearing that showed the misconduct was linked to Mr Grosset’s medical condition. The Employment Tribunal rejected his unfair dismissal claim as dismissal was reasonable given the evidence available to the Council at the time. However, the Tribunal upheld Mr Grosset’s claim for discrimination arising from his disability. The Council appealed to the Employment Appeal Tribunal (EAT).

The EAT agreed that there was sufficient medical evidence to show that the misconduct arose as a result of Mr Grosset’s disability and that the Council had dismissed him as a result.  The two stage test for discrimination arising from a disability had been made out, specifically:

  • that the disability had caused ‘something’ (in this case the misconduct); and
  • that the employee had been treated unfavourably because of that ‘something’ (i.e. Mr Grosset was dismissed).

The EAT reiterated that section 15 did not require the Tribunal to examine whether the Council knew about the link between the conduct and the disability at the time. The EAT also upheld the Tribunal’s view that the Council’s actions were not objectively justified and Mr Grosset’s claim for discrimination arising from his disability was therefore made out.

This case only serves to highlight the complexity surrounding claims for discrimination arising from a disability.  Employers can be liable for such claims even where they reasonably conclude at the time that the ‘something’ is not caused by the employee’s disability.  Employers will only escape liability if they can prove they did not know (or could not reasonably be expected to know) that the employee was disabled (and not whether they were aware of any disadvantage caused).  Furthermore, evidence available after the event can defeat an objective justification defence.