Employers know it is unlawful to discriminate against a member of staff because of their disability. However many employers are not aware that it is also unlawful to treat a disabled employee less favourably because of ‘something arising in consequence’ of their disability, unless the treatment is justified.
The recent case of City of York Council v Grosset CA 2018 is important as it is the first to consider whether an employer will escape liability if it did not know that the ‘something’ arose from the employee’s disability.
In this case a teacher with cystic fibrosis was successful in his claim. The School knew of his disability and made reasonable adjustments to accommodate it. However these adjustments were not properly recorded and when a new head teacher took over, he was not aware of Mr Grosset’s disability nor the reasonable adjustments. Changes were introduced increasing Mr Grosset’s workload and as a result his cystic fibrosis was affected, and he was off sick.
Without authority to do so, Mr Grosset showed the film Halloween to a class of 15 year olds who needed more attention than other children at the school. He claimed this was an error of judgment due to excessive stress. The school dismissed him for gross misconduct.
The Court upheld Mr Grosset’s claim that he had been subjected to less favourable treatment because of ‘something’ i.e. dismissing him because of showing the film. The Court also decided that there was a causal link between the disability and the ‘something.’ Grosset had shown the film when he was suffering from high levels of stress exacerbated by his disability. The School was liable providing it knew or could be reasonably expected to know that he was disabled; it did not have to be aware that the ‘something’ arose from his disability.
The School also failed in its defence that the less favourable treatment i.e. the dismissal, was justified. Mr Grosset was remorseful and so it was unlikely he would have repeated the misconduct. If the school had made reasonable adjustments to assist with his workload then it was considered very likely that he would not have shown the film.
This case shows how important it is that employers investigate the full situation, to include obtaining a medical report and ensuring reasonable adjustments are implemented (and documented), before taking formal disciplinary action against disabled employees.
If you have any queries about issues raised in this blog contact your usual Morrisons adviser of Francesca Wild by email on [email protected]