City of York Council v Grosset

For discrimination arising from disability under section 15(1)(a) of the Equality Act 2010, the tribunal must ask two distinct questions. It must identify the something because of which the disabled person was treated unfavourably, and determine objectively whether that something arose in consequence of the disability. The discriminator need not know of the causal connection, although section 15(2) separately addresses knowledge of the disability itself.

Justification under section 15(1)(b) is an objective proportionality assessment for the tribunal. It differs from the range-of-reasonable-responses test for unfair dismissal. The tribunal may consider all relevant evidence and make its own findings. A failure to make reasonable adjustments which would have prevented or reduced the circumstances producing the unfavourable treatment may weigh strongly against justification.

The claimant, a teacher with cystic fibrosis, was dismissed for gross misconduct after showing an 18-rated horror film to pupils without approval or parental consent. The Employment Tribunal found that exceptionally high stress, arising in very large part from his disability and the employer’s failure to reduce his workload, caused the error of judgment. It upheld his claim under section 15 of the Equality Act 2010, although a majority dismissed his unfair dismissal claim.

The Employment Appeal Tribunal dismissed both the employer’s appeal on disability discrimination and the claimant’s cross-appeal on unfair dismissal. The employer appealed against the section 15 decision. The issues were whether section 15(1)(a) required the employer to know that the misconduct arose from the disability, and whether the dismissal was objectively justified under section 15(1)(b).

1. Appeal dismissed unanimously. Section 15(1)(a) of the Equality Act 2010 requires two distinct causative inquiries. First, the tribunal must determine whether the respondent treated the claimant unfavourably because of an identified “something”. This inquiry examines the respondent’s reasons. Secondly, the tribunal must determine objectively whether that something arose in consequence of the claimant’s disability. The employer need not know of that causal connection: paras [35]–[40].

2. The contrary construction would make the defence in section 15(2) redundant. That subsection addresses whether the respondent knew, or could reasonably have been expected to know, that the claimant had the disability. Once such knowledge exists, lack of knowledge that the relevant conduct arose from the disability is no defence, subject to objective justification under section 15(1)(b): paras [40], [45]–[48]. The phrase “in consequence of” permits a relatively broad causal connection and does not demand an immediate link between the disability and the relevant something: para [50].

3. The Employment Tribunal was entitled to find that the showing of the film arose from exceptionally high stress which was itself substantially connected with the claimant’s disability. The employer dismissed him because he showed the film. Section 15(1)(a) was therefore satisfied even though the disciplinary decision-makers did not believe his explanation: paras [33]–[38], [48].

4. Justification under section 15(1)(b) is an objective proportionality assessment which the tribunal must conduct for itself. It is distinct from the unfair dismissal inquiry, which asks whether dismissal fell within the range of reasonable responses available to the employer. Accordingly, there was no inconsistency between upholding the discrimination claim and rejecting the unfair dismissal claim: paras [54]–[55].

5. The tribunal properly recognised the legitimate aims of safeguarding children and maintaining disciplinary standards, but was entitled to find dismissal disproportionate. It could assess the claimant’s remorse for itself using the evidence before it, including evidence unavailable to the employer: paras [56], [58]. The employer’s failure to make reasonable workload adjustments was a particularly strong factor. Those adjustments would probably have prevented the stress and the incident, while a written warning would have achieved the legitimate aims: paras [57]–[58].

6. Arden LJ agreed, but left open whether the Commission’s code of practice may be used as an aid to statutory construction. That question had not been argued: para [68].

• Court of Appeal (Civil Division): The employer’s appeal was dismissed unanimously. The court upheld the conclusion that the dismissal constituted discrimination arising from disability under section 15 of the Equality Act 2010: [2018] EWCA Civ 1105.
• Employment Appeal Tribunal: The employer’s appeal against the section 15 ruling and the claimant’s cross-appeal concerning unfair dismissal were both dismissed unanimously: UKEAT 0015/16/BA.
• Employment Tribunal: The tribunal unanimously upheld the section 15 claim concerning dismissal and certain reasonable-adjustment claims. A majority dismissed the unfair dismissal claim.