City of York Council v Grosset

The Court of Appeal dismissed the employer's appeal against the Employment Appeal Tribunal's rejection of its challenge to an Employment Tribunal finding that the claimant had suffered discrimination arising from disability under section 15 of the Equality Act 2010 in relation to his summary dismissal for gross misconduct. The court held that section 15(1)(a) requires proof (i) that the employer treated the employee unfavourably because of an identified "something" (here, showing an inappropriate film) and (ii) that that "something" arose in consequence of the employee's disability. There is no additional statutory requirement that the employer must have known that the "something" arose from the disability. On justification under section 15(1)(b) the tribunal must apply an objective proportionality test and may take into account evidence not available to the employer at the time, including whether reasonable adjustments would have prevented the precipitating events.

This is an appeal from an Employment Appeal Tribunal decision affirming an Employment Tribunal finding that a teacher (the claimant) had been discriminated against under section 15 Equality Act 2010 when summarily dismissed for showing an 18-rated film to a small class of 15- and 16-year-olds. The claimant suffered from cystic fibrosis and asserted that an increased workload, lack of recorded reasonable adjustments and an acute level of stress caused by his disability led to an error of judgment. The respondent employer dismissed him for gross misconduct following disciplinary and appeal panels which did not accept that the showing of the film was caused by disability-related stress.

Nature of the claim:

• Claim under section 15 EqA (discrimination arising from disability) in respect of a range of acts including dismissal;
• Claims under sections 20 and 21 EqA (failure to make reasonable adjustments);
• Unfair dismissal claim under section 98 Employment Rights Act 1996.

Procedural history: The ET (decision dated 3 September 2015) found liability under section 15 EqA (including in relation to dismissal) and breaches of the reasonable-adjustment duties, but dismissed the unfair dismissal claim. The EAT dismissed the employer's appeal against the ET's findings. The employer appealed to the Court of Appeal, which heard the matter and dismissed the appeal.

Issues framed by the Court:

1. How is section 15(1)(a) EqA to be properly construed: does liability require that the employer appreciated that the detrimental act arose from the employee's disability?
2. What is the proper approach to the section 15(1)(b) justification (proportionality) defence and its interplay with findings in unfair dismissal law?

Court’s reasoning and disposition:

• The court held that section 15(1)(a) involves two causative inquiries: (i) was the unfavourable treatment imposed because of an identified "something"; and (ii) did that "something" arise in consequence of the disability. The second inquiry is objective and does not require that the employer knew of the causal link. Section 15(2) provides the statutory recognition of the employer's defence where the employer did not know and could not reasonably be expected to know of the disability.
• Legislative history, explanatory notes and the Code of Practice support a construction which does not import an additional knowledge requirement that the employer must have appreciated the causal link between the disability and the "something".
• On justification under section 15(1)(b) the tribunal must make its own objective proportionality assessment. The tribunal lawfully concluded that dismissal was disproportionate in the circumstances, having regard to the claimant's sincere remorse, the evidence of stress caused by the disability and the employer's failures to make reasonable adjustments which would likely have prevented the incident.

The Court of Appeal therefore dismissed the appeal and upheld the ET's finding of discrimination arising from disability in relation to dismissal.

Appeal dismissed. The Court of Appeal held that section 15(1)(a) EqA requires (i) that the employer treated the employee unfavourably because of an identified "something" and (ii) that that "something" arose in consequence of the employee’s disability; there is no further requirement that the employer must have appreciated the causal link. The tribunal reasonably and lawfully applied the objective proportionality test under section 15(1)(b), taking into account the claimant’s disability-related stress and the employer’s failures to make reasonable adjustments, and correctly concluded dismissal was not justified.

Employment Tribunal decision (3 September 2015) found discrimination arising from disability under section 15 EqA and breaches of reasonable-adjustment duties but dismissed unfair dismissal. Employment Appeal Tribunal (UKEAT 0015/16/BA) dismissed the employer's appeal and the claimant's cross-appeal. Court of Appeal ([2018] EWCA Civ 1105) dismissed the employer's appeal against the finding of breach of section 15 EqA.