The recent Court of Appeal decision in City of York Council v Grosset has been described as “another important landmark in the development of disability discrimination” – although perhaps not a welcome one for employers.

The Court of Appeal has held that, where an employer dismisses a disabled employee for misconduct caused by his or her disability, the dismissal can amount to discrimination arising from a disability even if the employer did not know that the misconduct was caused by the disability.

Mr Grosset was the Head of English at a school operated by the City of York Council. The Council was aware the Mr Grosset suffered from Cystic Fibrosis, which it accepted was a disability for the purposes of the Equality Act 2010. A number of changes at the school led to a sudden increase in workload for Mr Grosset. This, paired with the demands of his illness, caused Mr Grosset to suffer from stress. It was during this time that he showed the 18-rated film, Halloween, to a class of 15 and 16 year olds. He did so without parental consent.

When this was discovered, Mr Grosset was suspended. During the disciplinary proceedings which followed, Mr Grosset accepted that showing the film was inappropriate, but maintained that it was an error of judgment arising from the stress that he was under. The Council did not accept that explanation, and Mr Grosset was dismissed for gross misconduct.

An Employment Tribunal found that Mr Grosset had suffered discrimination arising from disability. Medical evidence available to the Tribunal (but notably not available to the Council at the time of dismissal) demonstrated a link between Mr Grosset’s misconduct (i.e. showing the 18-rated film) and his disability. In the absence of objective justification, therefore, his dismissal amounted to discrimination arising from a disability.

The Council appealed, arguing that the claim for discrimination arising from disability could not succeed unless the Council knew that his misconduct arose in consequence of his disability. After all, the medical evidence available to the Council at the time of the dismissal suggested no such link.

The Court of Appeal rejected that argument. Claims for discrimination arising from disability will succeed where an individual is treated unfavourably because of something arising in consequence of his or her disability, provided that the unfavourable treatment cannot be objectively justified. The Court of Appeal has confirmed that this is the case even if the employer did not know that the “something” (in this case, the misconduct) arose because of the disability.

This stands in contrast to the knowledge test that applies in claims for failure to make reasonable adjustments. Those claims will succeed only if the employer knew (or ought reasonably to have known) that the disabled person had a disability (which is also a requirement in claims for discrimination arising from disability) and that they were likely to be placed at a substantial disadvantage because of their disability. It seems incongruous, perhaps, that no secondary level of knowledge is required in cases for discrimination arising from disability, particularly given that those claims are so often brought alongside claims for failure to make reasonable adjustments.

Nevertheless, in light of this latest decision, employers would be well advised to take a particularly cautious approach when it comes to disciplining, or even performance managing, disabled employees. With the benefit of detailed medical evidence, employers should carefully investigate whether there may be any link between the conduct and the employee’s disability before taking action, even when that link appears to be tenuous.

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Employment