More care needed to understand how a disability affects someone

by | May 21, 2018 | Disability

Dismissal is clearly an act of unfavourable treatment if the claimant can show there is a connection between that dismissal and their disability.

In cases where a misconduct has been relied upon by the employer as grounds to dismiss, if that conduct arises as a consequence of somebody’s disability, then there’s the potential for the employee to claim under s15 of the Equality Act 2010 (EA). But what if the employer didn’t actually know that the person had the disability? Or, they didn’t appreciate the effect of the disability, that it had that connection to the misconduct?

That issue has just come before the Court of Appeal in the case of City of York Council v Grosset. He was a teacher with cystic fibrosis who was challenged by his workload. The act of misconduct that he committed was showing an 18-certificate film Halloween to vulnerable adolescents.

His health needs required him to spend up to three hours a day in a punishing regime of physical exercise to clear his lungs, which restricted severely the time and energy available for him to adapt to a sudden or significant increase in his workload, as happened in this case. The additional stress also exacerbated his medical condition. In the disciplinary process he claimed that this was an error of judgement arising from his stress, which had a link back to his disability.

As regards his unfair dismissal claim, the dismissal was within the band of reasonable responses. An employer has considerable room to manoeuvre as it is only if you can show that no reasonable employer would dismiss in the circumstances that somebody is likely to have been unfairly dismissed, provided you followed a procedure.

That is an entirely different test however to s15 EA which requires a tribunal to make its own assessment. When it comes to s15, the test the tribunal is required to apply is to consider what the ‘something’ arising in consequence of a disability is that the employee faced. There then has to be a connection between whatever that is and the unfavourable treatment that is alleged. Each individual’s disability will be different, although the things that arise as a consequence of their disability will be very varied and will depend on the particular person concerned. Somethings will be obvious such as the inability to walk unaided, or inability to use certain equipment but other things will not be obvious for example, following a restricted diet. The Court of Appeal ruled that liability doesn’t depend on the employer being aware that the ‘something’ in question has arisen as a consequence of the employee’s disability. For example, you do not need to be aware that someone has lost their temper due to their cancer and the pain that they’re suffering, only that they are suffering from cancer. If you then discipline the person for losing their temper at work, it is then an act of unfavourable treatment arising from that pain because of a disability.

This does mean that if you’re aware somebody has a particular medical condition you need to be really careful to understand the effects of that medical condition and obtain advice before reaching any judgements about whether there is a link between that medical condition and something that has happened, or is observed. It is therefore possible to find somebody was fairly dismissed but, still find that the employer has no good justification for their dismissal when it comes to disability legislation. The tribunal is entitled to find that the step of dismissal was disproportionate to the particular event or circumstances.

In this particular case it seemed that if the employer had put in place the reasonable adjustments that the law separately required them to do to reduce the claimant’s workload, he wouldn’t have been subjected to the same levels of stress, and the incident with the film would have been extremely unlikely to have occurred. It again puts the spotlight back onto the employer to make those reasonable adjustments.

I am concerned about the number of cases that I have heard of recently where employers ought to be aware that somebody is clearly not coping with their workload, and suffering from the effects of stress but, a blind eye has been turned to the circumstances and nothing has been done to address the issue. This sort of case highlights how employers are going to need to begin to take a more proactive approach and address what is before them, before they end up with these sorts of liabilities.

The employee was awarded £646,000, no further details were given as to how that sum had been calculated. A link to the article on the BBC website can be found here.