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Discrimination arising from a disability

Napthens - June 22nd 2018

Can dismissal amount to discrimination if the employer did not know that a disability was connected to their misconduct?

Yes, according to the Court of Appeal (CA) in The City of York Council v Grosset. It was found that, if a causal connection can be shown between the unfavourable treatment and a disability, this would be sufficient to establish discrimination arising from a disability.

The Facts

Mr Grosset worked as a secondary school teacher and was employed by the City of York Council. When he first started working at the school he informed them that he suffered from cystic fibrosis. As a result the school put in place reasonable adjustments to accommodate his disability. However, these reasonable adjustments weren’t properly recorded and, when a new head teacher took over at the school, they weren’t informed of Mr Grosset’s condition or any of the reasonable adjustments that were put in place. As a consequence of this he was subjected to an increased workload, which resulted in him being unable to juggle between his work and the time-consuming exercise regime that he had to partake in and which lasted up to 3 hours a day in order to prevent his disability from becoming worse. Due to this, Mr Grosset became unable to cope at work due to stress as he was concerned that his health was deteriorating through being unable to exercise and this may result in him needing a lung transplant.

The issue arose when Mr Grosset was teaching a class of 15-16 year olds, who were described as a “nurture group” and generally needed more attention than some of the other classes. Over two individual lessons he showed the pupils the 18-rated film “Halloween”, without obtaining the consent of the school and the parents of the pupils. Mr Grosset attributed this to an error of judgement caused by his extremely high level of stress, which was exacerbated by his workload. Mr Grosset had earlier raised concerns about the increased workload and the impact it was having on his health and had therefore asked for a reduction in his workload. However this was ultimately rejected. Instead, he was referred to Occupational Health which was delayed for four months, by which time he was signed off work with stress.

As a result of his actions the school subsequently dismissed him, citing his lack of remorse and not accepting that his stress or disability was the reason why he decided to show the film. However, the CA found that his dismissal was a result of discrimination arising out of a disability. In addition, given his length of service, unblemished disciplinary and performance record, it was found that a final written warning would have been appropriate in the circumstances.

In total, Mr Grosset was awarded £646,000 for disability discrimination.

What Is Best Practice?

Whilst this case was very fact specific,  it still serves as a stark warning to employers that they need to be careful when dealing with employees who have a disability. This is especially the case where reasonable adjustments have been made. Employers should ensure that a log of the circumstances and any reasonable adjustments made is kept and that it is held in a secure database. In addition, should an employee seek reasonable adjustments or make you aware of a disability, you should seek to resolve their concerns without delay.

Finally, should you seek to dismiss an employee who has a disability you need to ensure that the dismissal is reasonable, taking into account all of the factors including whether any reasonable adjustments have been made. This was of particular importance in this case.

For more information on any of the issues mentioned above, please get in touch.