Caught out by unconscious discrimination

A recent case (City of York Council v Grosset UKEAT/0015/16/B) highlights that employers do not need to have knowledge of the link between someone’s disability and their conduct in order to act in a discriminatory way.

Under the Equality Act 2010, an employer acts in a discriminatory way if an employee is treated less favourably because of something which has arisen from their disability and the employer can’t show that the treatment was objectively justified.

In this case, the employee was a teacher who had cystic fibrosis and was suffering stress as a result of increased workload (for which he had issued a grievance). The teacher showed a group of 15 and 16 year old students an 18 rated film (Halloween) across two classes and was dismissed on grounds of gross misconduct.

During the disciplinary process, the school considered that the misconduct was not a lapse of judgement arising from his disability as he could have stopped the film at any time across the two lessons.

However the court, which had access to more medical evidence than the school used to base its decision on, found that the teacher was suffering a mental state in which lapses in judgement could be expected. Therefore, the causal link between his disability and his dismissal was not broken, regardless of the fact that the school had not appreciated this link. The dismissal was found to be  discrimination arising from disability.

The case highlights the importance of full medical evidence in making a decision regarding whether disability is linked to the reason for dismissal, since lack of knowledge will not be enough to defend the dismissal as non-discriminatory.

The grievance raised by the teacher regarding his workload and related stress was dealt with by a separate panel at the same time as the disciplinary process. While the court considered this was reasonable, it was noted that the grievance panel would have had access to more information regarding the teacher’s stress, and therefore this may have been better dealt with in conjunction with the disciplinary process.

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