Successful "discrimination arising from disability" claim in respect of fair dismissal
Author: Darren Newman
Consultant editor Darren Newman explains how the difference between the test of reasonableness in relation to unfair dismissal and the test for justification in relation to "discrimination arising from disability" led to an interesting - and important - Court of Appeal decision.
One of the few genuinely new provisions brought in back in 2010 by the Equality Act was s.15, which introduced discrimination because of something arising in consequence of a disability. Unfortunately, it has no snappy title and this may go some way to explaining why its full potential has taken some years to filter through. Much of the discussion around disability discrimination focuses on the duty to make reasonable adjustments, but s.15 may turn out to be an even more important right.
The recent Court of Appeal decision in City of York Council v Grosset [2018] IRLR 746 CA shows why. Mr Grosset is a teacher who was dismissed for showing an inappropriate film ("Halloween") to vulnerable teenage pupils, some of whom had a history of self-harm. No one involved in education would find it surprising that a lapse in judgment of this nature would lead to dismissal - and indeed the tribunal found that his dismissal was fair.
However, Mr Grosset is also disabled - he has cystic fibrosis - and he claimed that his dismissal amounted to discrimination. Applying s.15, the tribunal found that his dismissal was unfavourable treatment and that the "something" that led to it was showing the film. The key question was whether or not that "something" arose in consequence of his disability. The tribunal held that it did.
The connection between cystic fibrosis and Mr Grosset's decision to show a horror film to schoolchildren will probably not leap out at you, but it is there nevertheless. As a teacher in a struggling English department he was subjected to considerable work pressure. He had less scope than others to work late and at weekends to stay on top of things because his cystic fibrosis required him to undergo an extensive and punishing exercise regime to clear his lungs. This left him physically exhausted and unable to take on extra work and resulted in increasing stress. It was this stress that led to the lapse of judgment in showing the film. The tribunal went on to find that the dismissal was not a proportionate means of achieving a legitimate aim. The employer had failed to make a number of adjustments that would have helped alleviate his stress. Had it properly addressed the issue of his workload, the situation would not have arisen.
An important element of s.15 is that it applies only if the employer knew, or ought reasonably to have known, that the individual had the disability. That was not an issue here, as Mr Grosset's disability was no secret. However, the employer argued that there was another requirement - that the employer be aware of the link between the disability and the "something" leading to the unfavourable treatment. The employer knew that Mr Grosset was disabled, but had no reason to believe that this was in any way linked to his lapse of judgment.
The Court of Appeal has firmly - and quite rightly - rejected this argument. There is simply nothing in s.15 that suggests that there is a need for the employer to be aware of the link between the disability and the "something" that results in the unfavourable treatment. This is in contrast with the duty to make reasonable adjustments, which looks for knowledge not only of the disability but also of the disadvantage that the employee is likely to be under as a result of the employer's provision, criterion or practice.
Most of the Court of Appeal's decision is taken up with this - to me - rather obvious point. But I think it is the second point in the case where the real interest lies. The tribunal had found that Mr Grosset's dismissal was fair: given the information that the employer had at the time, dismissal was within the range of reasonable responses. However, when it came to the question of whether or not the dismissal amounted to unlawful discrimination, the tribunal held that it did. Applying its own judgment to the facts of the case, the tribunal held that dismissal was not a proportionate means of achieving a legitimate aim.
Is this a contradiction? The Court of Appeal said no. The test of reasonableness in unfair dismissal and the test for justification under s.15 are two different things. In an unfair dismissal claim the tribunal must be careful not to substitute its own view for that of a reasonable employer. But when it comes to justification in a discrimination claim the tribunal has to reach its own view about whether or not what the employer has done is proportionate. In a previous Court of Appeal decision - O'Brien v Bolton St Catherine's Academy [2017] IRLR 547 CA - Lord Justice Underhill had said that he very much doubted that the two tests would lead to different results. However, that was a case where the tribunal had found the dismissal to be unfair and had also upheld the s.15 claim, and it is indeed very difficult to see why a dismissal that is outside the range of reasonable responses open to an employer could nevertheless be a proportionate means of achieving a legitimate aim. But there is no reason why a dismissal that is held to be within the range of reasonable responses should necessarily meet the more stringent test under s.15. In giving the leading judgment in Mr Grosset's case, Lord Justice Sales suggested that Underhill LJ's comments in O'Brien were confined to their facts. Usually this is judicial code for "obviously wrong", but in this case I think Sales LJ is right - Underhill LJ was simply not thinking about a case like Mr Grosset's.
What this means in practice is that a different standard of reasonableness applies to a dismissal when the employee is known to have a disability. First, the employer must take the risk that the reason for the dismissal will turn out to have arisen in some way from the disability (and in cases of dismissals based on sickness absence the link is almost inevitable). Second, it will not be enough to show that dismissal was one option open to a reasonable employer, as the tribunal will take its own view of whether or not dismissal was a proportionate response. That makes the result harder to predict and means that the dismissal of disabled employees carries a significant extra risk.
