Discrimination arising from disability

A recent Employment Appeal Tribunal ruling in a case involving a school run by a city council should act as a warning for employers, writes Eleanor Boyd.

In City of York Council v Grosset, the Employment Appeal Tribunal (EAT) held that when considering whether an employee suffered discrimination arising from disability, a tribunal was permitted to take into account medical evidence that was not available to the employer at the time of dismissal.

A claim for discrimination arising from disability under s15 Equality Act 2010 (the EqA) will be established where:

• A treats B unfavourably because of something arising in consequence of B's disability
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim

An employer will not be liable under s15 where it did not know, and could not have been expected to know, that the employee was disabled.

The facts

Mr Grosset was a teacher and Head of English at a school run by the City of York Council (the Council). The Council was aware that Mr Grosset suffered from cystic fibrosis and conceded that he was disabled for the purposes of the EqA.

As a result of his condition, Mr Grosset needed to spend up to three hours per day undertaking physical exercise to clear his lungs. When his workload increased following a change in head teacher, Mr Grosset struggled to cope and suffered stress which in turn exacerbated his condition.

During this time, Mr Grosset chose to show the 18-rated film Halloween to a class of 15 and 16-year-olds. When the head teacher discovered this, Mr Grosset was suspended and subsequently dismissed for gross misconduct.

In deciding to dismiss Mr Grosset, the disciplinary panel found that there had been several points at which Mr Grosset could have stopped the film. It also noted his lack of remorse for choosing to show the film.

The tribunal's decision

Mr Grosset brought various claims including claims for unfair dismissal and discrimination under the EqA.

The medical evidence available to the Council at the time of the dismissal did not demonstrate a causal link between Mr Grosset's misconduct and his disability. However, in contrast, the medical evidence presented at tribunal did appear to show such a link.

The tribunal dismissed Mr Grosset's unfair dismissal claim, applying the band of reasonable responses test and taking into account the medical evidence that was available to the Council at the time of his dismissal.

However, the tribunal upheld Mr Grosset's claim of discrimination arising from disability, taking into account the medical evidence provided to the tribunal (which was not available to the Council at the time of dismissal). The Council appealed to the EAT on this point, on the basis that at the time of dismissal it was not aware that there was a link between Mr Grosset's misconduct and his disability.

The EAT's decision

The EAT held that the reason for Mr Grosset's dismissal was misconduct - the showing of the film - and that based on the medical evidence before the tribunal, the misconduct had arisen in consequence of Mr Grosset's disability. S15 of the EqA did not require to Tribunal to decide whether the Council knew there was a link between Mr Grosset's misconduct and his disability. An employer's knowledge will only be relevant to determine whether or not they knew the employee was disabled at all.

Best practice

This case demonstrates that an employer can be found guilty of discrimination arising from disability where it formed a reasonable conclusion (based on evidence available to it at the time) that an employee's misconduct was not caused by their disability.

In cases where a link is established between the employee's actions and their disability (and the employee's actions have resulted in some sort of unfavourable treatment) an employer will only avoid liability under s15 EqA where it did not know, and could not reasonably have been expected to know, that the employee had a disability or where its actions can be objectively justified. On the basis of this judgment an employer will not escape liability simply because the evidence available at the time of its decision did not establish a link between the behaviour in question and the employee's disability.

The Council are seeking leave to appeal to the Court of Appeal.

Eleanor Boyd is a solicitor at Veale Wasbrough Vizards. She can be contacted on 020 7665 0940 or This email address is being protected from spambots. You need JavaScript enabled to view it..