A school has been found to be in breach of the Equality Act when dismissing an English teacher because of an error of judgement that it thought was unconnected with his disability. The Court of Appeal has explained that as long as an employer is aware that a worker is disabled, it can be liable for discrimination even if it does not realise that there was a causal connection between the disability and the conduct which triggered the disciplinary action. However it remains open for the employer to justify its actions as a proportionate means of achieving a legitimate aim.
In this case Mr Grosset had cystic fibrosis, which meant that he had to follow a time-consuming exercise regime each day to clear his lungs. While this did not impair his abilities as a teacher, it meant that he was less able to absorb unplanned increases in his workload than someone without this condition.
The appointment of a new head teacher led to a major change to the curriculum he was teaching. He began to suffer from stress due his difficulties managing an increased workload and his lung capacity reduced significantly. After an unsuccessful request for adjustments he was signed off work with stress.
During Mr Grosset’s absence on sick leave the school discovered that he had shown an 18-rated film to his 15 and 16 year old students. This led to his dismissal for gross misconduct. Mr Grosset argued that this was an uncharacteristic error of judgement due to the stress he had been under, which was in turn directly linked to his disability.
While the employment tribunal dismissed Mr Grosset’s claim for unfair dismissal, it upheld his claim for discrimination “because of something arising in consequence of” his disability. It decided that there was a sufficiently close link between the error of judgement which led to his dismissal and his disability: it had arisen in consequence of his disability. It also dismissed the school’s argument that its actions were justified. While it was clearly entitled to safeguard its pupils, it considered that dismissing Mr Grosset in these particular circumstances was disproportionate.
On appeal the school argued that it should not be liable under these provisions unless it was aware of the link between the error of judgement and the claimant’s disability. The Court of Appeal disagreed. To hold otherwise would significantly narrow the scope of the protection given to disabled people. The relevant provisions had been inserted into the Equality Act 2010 to counteract the effect of a narrower interpretation given by the House of Lords to the corresponding provisions in the Disability Discrimination Act 1995.
This decision is a reminder that employers need to be particularly careful when disciplining disabled workers, or subjecting them to any other kind of unfavourable treatment. They need to be aware of the possibility that the trigger for the disciplinary action may be something arising in consequence of their disability, and be prepared to justify their actions as a proportionate means of achieving a legitimate aim.
What is proportionate is a matter for the employment tribunal to assess on an objective basis. That makes it different from the reasonableness an employer needs to demonstrate when defending unfair dismissal claims, which the tribunal is required to assess by reference to a “band of reasonable responses” – an approach which gives an employer much more latitude.