City Of York Council v Grosset (Disability Discrimination)

For discrimination arising from disability under section 15 of the Equality Act 2010, a tribunal must identify the something which caused the employer to treat the employee unfavourably. It must then decide objectively whether that something arose in consequence of disability. The employer’s knowledge of the disability, rather than its knowledge of every medical consequence, is material to liability.

Objective justification requires the tribunal to evaluate proportionality for itself, while giving proper weight to the employer’s working practices and business considerations. That assessment may use medical evidence not available to the employer when it acted. The distinct statutory test for unfair dismissal permits a dismissal to be fair under section 98(4) of the Employment Rights Act 1996 although it is unjustified disability discrimination.

The claimant, a teacher with cystic fibrosis, was summarily dismissed after showing an 18-rated film to vulnerable pupils. The Hull Employment Tribunal upheld claims for discrimination arising from disability and failure to make reasonable adjustments. It found that stress linked to his disability had impaired his judgment when he showed the film. It also held that dismissal was not a proportionate response under section 15 of the Equality Act 2010.

By a majority, however, the Tribunal dismissed his unfair dismissal claim. It held that the employer’s investigation, including its decision to keep the grievance and disciplinary processes separate, fell within the range of reasonable responses. The employer appealed the section 15 finding concerning dismissal. The claimant cross-appealed the rejection of his unfair dismissal claim.

1. Appeal and cross-appeal dismissed. The Employment Tribunal made no error of law in upholding the section 15 claim concerning dismissal, and its majority conclusion that the dismissal was fair under section 98(4) of the Employment Rights Act 1996 was not perverse.

2. Following Basildon & Thurrock NHS Foundation Trust v Weerasinghe, the first causal question under section 15 of the Equality Act 2010 is what factor caused the employer to act unfavourably. It requires examination of the relevant decision-maker’s mind. Here, the undisputed factor was the claimant’s misconduct in showing the film. The separate question was whether that misconduct arose in consequence of disability, which was objectively determined on the evidence before the Tribunal.

3. The Tribunal permissibly found that the misconduct resulted from an impaired mental state caused by stress arising largely from disability. It could consider fuller medical evidence which had not been available to the employer. Section 15(2) supplies the relevant protection where the employer lacked, and could not reasonably have been expected to have, knowledge of the disability; that defence was unavailable on the facts.

4. Justification was also an objective inquiry. The Tribunal correctly identified the legitimate aims of safeguarding children and maintaining disciplinary standards, and balanced those aims against the discriminatory effect. It retained the employer’s workplace practices and business considerations at the centre of its analysis, but was entitled to reach a different conclusion on proportionality from the employer.

5. The fairness inquiry under section 98(4) was distinct. The Tribunal majority was entitled to hold that separating the grievance from the disciplinary process, and dismissing on the evidence then available, remained within the band of reasonable responses. The cross-appeal sought impermissibly to re-argue that evaluative conclusion.

• Employment Appeal Tribunal: appeal and cross-appeal dismissed; the Hull Employment Tribunal’s judgment was upheld.
• Hull Employment Tribunal: judgment sent on 3 September 2015. The Tribunal upheld the claimant’s section 15 and reasonable-adjustments claims under the Equality Act 2010, but by a majority dismissed the unfair dismissal claim.