The EAT has recently held that knowledge of the consequences of a disability is not required for claims of discrimination arising from disability.
Mr Grosset was a teacher and Head of English at a school operated by the City of York Council. He suffered from cystic fibrosis, which the Council acknowledged was a disability for the purposes of the Equality Act 2010. As a consequence of his condition, Mr Grosset was required to spend up to three hours a day doing intense physical exercise to clear his lungs.
Following a change of head teacher, Mr Grosset's workload increased. As a result of his condition, Mr Grosset struggled to cope with the additional demands placed on him. He suffered stress, which in turn exacerbated his cystic fibrosis.
During this period, Mr Grosset showed the 18-rated film Halloween to two classes of 15 and 16-year-olds. When the head teacher discovered this, Mr Grosset was suspended and eventually dismissed for gross misconduct. Whilst Mr Grosset argued that showing the film had been a momentary error of judgment caused by the level of stress he was under, the disciplinary panel did not accept this.
An employment tribunal held that Mr Grosset had not been unfairly dismissed, as the Council's decision was within the range of reasonable responses available to it.
It did however believe that Mr Grosset had suffered discrimination arising from disability. Although the medical evidence available to the Council at the time of dismissal did not suggest a link between Mr Grosset's misconduct and his disability, medical evidence available by the time of the tribunal hearing demonstrated otherwise.
The EAT dismissed the Council's appeal. It held that the tribunal was correct to find that Mr Grosset's disability had caused or resulted in his act of misconduct (the "something" arising in consequence of disability) and the Council had then treated him unfavourably by dismissing him because of that something.
The EAT also held that the tribunal was not required to decide whether the Council knew that there was a link between the misconduct and Mr Grosset's disability. It said that knowledge is only relevant to whether the employer knows that the employee is disabled.
The EAT’s decision continues the trend in case law that a very tenuous connection between an employee’s disability and the consequences of that disability can suffice to establish discrimination arising from disability. Where there may be a link, up to date medical evidence should always be obtained. Employers should also consider whether they would be able to justify their action as a proportionate means of achieving their aims, or whether a less severe penalty could be imposed on the employee.