Discrimination arising from Disability

Section 15 of the Equality Act 2010 (EqA) confirms that if a person is treated unfavourably because of something arising in consequence of their disability and it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim then this will amount to discrimination arising from disabilityE+W+SThis section has no associated Explanatory Notes

The Court of Appeal in the case of City of York Council v Grosset considered whether a dismissal could amount to unfavourable treatment under section 15 of EqA, even if the employer did not know that the disability was connected to the misconduct.

This case concerned a teacher, Mr Grosset, who suffered from cystic fibrosis and who was also stressed by his workload, which had increased with the arrival of a new head teacher.  Prior to this, there had been several reasonable adjustments put in place for Mr Grosset although these were not properly recorded.  While suffering from stress due to his increased workload, Mr Grosset showed an 18-rated film to vulnerable adolescents.  He asserted that the decision to show the film was an error of judgment arising from the stress he was under which was linked to his disability. However, he was dismissed for gross misconduct as a result of his actions.

He brought a claim in the Employment Tribunal for unfair dismissal and discrimination on the grounds of his disability.  The Employer resisted the claim on the basis that it had no knowledge that the misconduct was related to his disability and therefore the unfavourable treatment had no link to his disability and did not amount to discrimination.

The Employment Tribunal dismissed the claim of unfair dismissal but upheld the S.15 EqA disability discrimination claim on the basis that, although the school was unaware that Mr Grosset’s misconduct was linked to his disability at the time it decided to dismiss, medical evidence that had not been available to the school confirmed that there was such a link and that satisfied the causative test set down in S.15 EqA.   As for objective justification, the tribunal accepted that the school had legitimate aims in terms of safeguarding children and maintaining disciplinary standards but held that it had not demonstrated that dismissal was a proportionate means of achieving those aims.

The Council appealed unsuccessfully against the S.15 EqA claim. The EAT rejected the appeal and held that S.15 does not require an Employment Tribunal to ask itself whether the employer actually knew that the ‘something’ which caused it to treat the claimant unfavourably arose in consequence of his or her disability. The only knowledge requirement for a claim under S.15 is that the employer have actual or constructive knowledge of the fact that the claimant is disabled. The Council appealed further to the Court of Appeal.

The Court of Appeal held there was no inconsistency between the rejection of the unfair dismissal claim and the upholding of the S.15 claim. The test regarding unfair dismissal is about the band of reasonable responses and allows the Respondent extensive leeway. By contrast S.15 EqA is an objective test which allows a Tribunal to make its own assessment. As to justification the Employment Tribunal was entitled to find that dismissal was a disproportionate response.

Dismissal is plainly an act of unfavourable treatment. Provided that a Claimant can show a causal connection between unfavourable treatment and disability, then the causal link between the ‘something arising in consequence of their disability’ and the unfavourable treatment for the purpose of S.15 is an objective matter that does not depend on the employer’s knowledge.  As such, this will amount to discrimination arising in consequence of disability.