In November 2016 we issued a news item related to a Mr Grosset, who was a teacher at a school in York. His case has been working its way through the court hierarchy, and now the Court of Appeal (CA) has made a decision on the matter. We track the development of the case in this update.
As a recap of the facts, Mr Grosset suffers from cystic fibrosis. The extent of his condition is such that he requires to follow a gruelling regimen of steps to facilitate his breathing. This was not an issue under a previous headteacher, who made reasonable adjustments for Mr Grosset to give him the time to care for himself, but a new headteacher took over in 2013 and stopped the adjustments.
Around the same time, Mr Grosset’s workload began to increase, which led to stress and anxiety issues as well as a deterioration in his cystic fibrosis.
The crux of the matter is that Mr Grosset was discovered to have shown an 18-rated horror film to pupils aged 15 and 16. Upon this discovery, Mr Grosset was suspended and a disciplinary hearing was convened to hear allegations of gross misconduct.
At the hearing, Mr Grosset admitted to showing the film to the pupils, but stated that he had been under a significant amount of stress at the time, which had clouded his judgement. However, he was dismissed for his actions soon after. Mr Grosset then brought a claim for discrimination arising from a disability (DAFD).
DAFD is a particular form of disability discrimination, and in general terms is decided using a two-stage test:
- Did the claimant’s disability cause, have the consequence of, or result in ‘something’?
- Did the employer treat the claimant unfavourably because of that ‘something’?
The test above shows the differentiation between DAFD and direct disability discrimination. The latter generally involves less favourable treatment because of a disability, whereas DAFD involves unfavourable treatment linked not to the disability itself, but to something that has come about because of the disability.
The Employment Tribunal (ET) found that DAFD was established. Interestingly, it did so despite its acknowledgement that the medical evidence available to the school at the time did not evidence a clear link between Mr Grosset’s disability and the conduct in question, i.e. showing the film to underage pupils.
The council appealed, but unsuccessfully. The Employment Appeal Tribunal (EAT) agreed with the ET in that Mr Grosset’s condition, and the stress caused by it, had resulted in the misconduct (stage one of the test). It also found that his employer had treated him unfavourably by dismissing him for the misconduct (stage two of the test).
At the CA, the council tried a different approach by arguing that the law on DAFD requires an employer to know about the link between the disability and the ‘something’ arising from it before liability can be established. They further argued that, on that basis, the council could not have discriminated against Mr Grosset as it had not known that the misconduct was linked to his disability.
The CA was however not convinced, stating that the legislation does not require an additional stage to the test, i.e. that the employer must be aware of any link between the disability and the ‘something’ arising from it.
Its main reason for that conclusion was that the legislation already provides a potential defence to employers, namely that there will generally be no DAFD if the employer is not aware of the disability itself. The presence of that defence, in the CA’s opinion, would be redundant if the law also required knowledge of a link between the disability and the ‘something’ arising from it.
Another of the judges also stated that adding an extra stage to the test, as suggested by the council, would undermine the protection afforded under DAFD legislation.
As such, the council’s appeal failed, and Mr Grosset has been awarded almost £650,000 to compensate him for loss of future earnings and loss of pension, as well as compensation for the discrimination itself.
Being a CA case, this decision is now binding on ETs and EATs. While it is not a paradigm shift in the law, it is a definitive and helpful interpretation of what is a nuanced aspect of disability discrimination.
While on one hand it may be helpful, on another it could be troublesome from an employer’s perspective, as it establishes that an employer can be held liable for taking action against an employee for an act or omission that, on the surface, does not appear to be linked to any sort of disability.
In Mr Grosset’s case, the ‘something’ in question was an act of gross misconduct (and indeed he lost his unfair dismissal claim), but the decision could be applied just as easily to taking action against an employee for underperformance or absence.
What’s even trickier is that, in this case, the school had medical evidence that pointed away from a causative link between the disability and the misconduct, but was found liable nonetheless.
Overall therefore, in any situation where an employer knows (or ought to know) that an employee is disabled, a thorough investigation as to whether a link between that disability and an act of misconduct / performance (etc.) can be established is likely to be needed as part of a wider investigation into what took place. If there is such a link, careful thought may have to be given as to what action (if any) will be appropriate.
A failure to act reasonably in such circumstances could be costly, as experienced by the council in this case.
If you have any questions on any of the issues raised in the above article, or would like to discuss any issue related to disability discrimination, please contact Seanpaul McCahill.