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What you don't know can't hurt you? The employment tribunal thinks otherwise

View profile for Emily Yeardley
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In the decision of City of York Council v Grosset the Employment Appeal Tribunal (EAT) has upheld a claim for disability discrimination despite the fact that the employer was not aware of the disability at the time the discrimination took place. 

Facts

Mr Grosset was a teacher and Head of English at a school under the jurisdiction of the City of York Council. The Council was aware that Grosset suffered from cystic fibrosis, a chronic condition which effects the lungs, amongst other things. Reasonable adjustments were made to his working environment/timetable to assist him with this condition.

When a new Head Teacher was employed by the school, many of these adjustments fell away. As a result, Grosset experienced a significantly increased work load causing him stress which can (and in this case did) aggravate the symptoms of cystic fibrosis. Eventually, Grosset was signed off work.

During his absence, the school discovered that Grosset had shown an +18 rated movie (‘Halloween’) to a group of 15-16-year-old students. The school considered this to be more than just a momentary error of judgement caused by stress and dismissed him for gross misconduct.

Claims

Grosset brought a claim for disability discrimination (amongst other things) to the employment tribunal in respect of his dismissal. The tribunal held that Grosset’s dismissal was unfavourable treatment because of something arising in consequence of his disability, under section 15 of the Equality Act 2010. The tribunal accepted that the school had a legitimate aim including safeguarding the students and complying with its disciplinary standards but held that the school had not demonstrated that its actions were proportionate.

On appeal, the EAT agreed with the tribunal that Grosset’s decision to show the film was directly linked to his impaired mental state and that the medical evidence substantiated this (even though the medical evidence had not been available to the school at the time of the decision).

This was later confirmed in the Court of Appeal (CoA) where the CoA held that an employer need not be aware of a connection between the behaviour of an employee and the disability for their actions to be deemed discriminatory. Instead, it is for the tribunal to assess objectively whether the ‘something’ arose from the disability, giving weight to the evidence. 

Effect

Employees will welcome this judgment as it may well make it easier for employees to argue that an employer discriminated against them even though the employer didn’t know of their disability at the time that the alleged discriminatory act took place.

This case highlights the need for employers to take into account all factors and be live to possible issues before taking any adverse action against an employee.

If you would like to seek advice on this or any other employment related matter, please contact a member of our Employment department for more information.

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