By Patrick Stewart
Most employers are aware of the need to ensure that they do not subject a disabled employee to any unfavourable treatment due to their disability. However, the recent case of Grosset v City of York Council demonstrates that an employer can inadvertently discriminate against a disabled employee, even if they carry out an investigation and reasonably conclude that the unfavourable treatment (in this case a dismissal resulting from gross misconduct) is in no way connected to the disability.
Mr Grosset was Head of English at a school operated by York Council. The school was aware that he suffered from cystic fibrosis, conceded that this was a disability, and accordingly made reasonable adjustments to his role. This included allowing him to perform up to three hours of physical exercise a day during working hours in order to clear his lungs. On the appointment of a new head teacher, Mr Grosset’s workload vastly increased and he struggled to keep up with this health routine whilst also coping with the additional demands placed on him. This resulted in stress, which exacerbated his cystic fibrosis still further. During this period, Mr Grosset allowed a class of 15 and 16 year olds to view an 18 rated film and, following a disciplinary hearing, was dismissed for gross misconduct. As part of the investigation, the employer considered medical evidence but found no link between Mr Grosset’s disability and the alleged misconduct.
Mr Grosset however argued that his error of judgement was due to the stress he was under, and this arose as a result of his disability. He produced medical evidence which indicated that this was indeed the case.
The EAT held that Mr Grosset had been discriminated against due to his disability.
The Tribunal considered that they were required to decide whether the misconduct arose from Mr Grosset’s disability on an objective basis. They could therefore take into account medical evidence which was not available to the employer at the time they made their decision.
What does this mean for employers?
The Council is seeking leave to appeal. However, in the meantime, employers should tread carefully when they are aware that an employee is disabled. Although medical evidence continues to be important, employers should be aware that they will not be able to escape liability merely by arguing that the medical evidence available at the time does not indicate that the employee’s disability is relevant to the matter at hand. Employers should also ensure that they are able to objectively justify their actions. Broadly, this involves being able to point to a legitimate aim, as well as demonstrating that the aim cannot be achieved in any less discriminatory way.
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