Discrimination arising from disability

19 June 2018

An employer will not be liable for disability discrimination unless it knew about the employee's disability (or should have known about it). But what if an employer disciplines someone for misconduct that they don't know is connected to a disability?

Mr Grosset worked for City of York Council as a teacher. He had cystic fibrosis, which the Council accepted was a disability. After a change in management, his workload increased and he struggled to cope. He suffered stress which made his cystic fibrosis worse. During this time, he showed the 18-rated film 'Halloween' to a group of 15 year olds. He later said this was an error of judgement caused by the stress which was linked to his disability. The school disciplined and subsequently dismissed him. At the time of the dismissal, medical evidence did not link the decision to show the film to Mr Grosset’s disability. By the hearing, new medical evidence linked the misconduct to his disability.

The Employment Appeal Tribunal agreed that Mr Grosset had suffered discrimination arising from disability. The employer did not know that the misconduct was linked to disability at the time of dismissal. However, knowledge is not relevant in such claims.

The Council appealed to the Court of Appeal, who upheld the EAT’s decision.

This decision should be noted by employers as it illustrates that they can be liable for discrimination arising from disability even where they have reasonably concluded based on the evidence before them that there is no link between an employee's actions and their disability.

Knowledge is only relevant where the employer did not know, and could not reasonably be expected to know, that the employee was disabled. There is no further provision for those cases where the employer did not know that the disability produced a certain consequence.

Going forward, employers considering disciplining a disabled employee should always consider obtaining medical evidence on whether the employee's actions could in any way be a consequence of their disability. While knowledge may not be relevant to liability, if the employer does everything it can to establish whether there is a causal link, it increases its chances of avoiding taking action that would be considered discriminatory. The employer in this case did, however, take that step but ultimately lost. It appears that there will be cases where an employer will be forced to decide between giving an employee "the benefit of the doubt" that their unacceptable behaviour was a consequence of their disability, or risk a successful claim against them.

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