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Employment law article – section 15 of the Equality Act 2010 and the decision in City of York Council v Grosset
The recent decision by the Court of Appeal in City of York Council v Grosset 2018 EWCA Civ 1105 received a certain amount of publicity because the Claimant, a teacher who had allowed a class of 15-year old pupils to watch the film Halloween, which was X-rated, was dismissed for gross misconduct but succeeded in his claim for disability discrimination and received an award in excess of £600,000.
Under section 15 of the Equality Act 2010 a person (A) discriminates against a disabled person (B) if he treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate end. This does not apply if A shows that he did not know and could not be reasonably expected to know that B had the disability.
In the case of Grosset the claimant was a teacher employed by the defendant. The claimant had cystic fibrosis, this constituted a disability and was known to the defendant. The claimant was subjected to an increased workload, which resulted in difficulty in keeping his condition under control. He became very stressed as a result of the increased pressure of work. During this period he showed a class of 15 year olds an 18 rated horror film, Halloween, as part of his English course. He did not obtain the school’s approval for this or the permission of the parents. He later accepted that it was an error of judgment brought on by stress.
Disciplinary proceedings were brought against the claimant and he was dismissed. The claimant brought various claims under the Equality Act, both section 15 – unfavourable treatment because of something arising from disability and section 20 -failure to make reasonable adjustments, he also brought a claim for unfair dismissal.
The Employment Tribunal found that the dismissal was an act of unfavourable treatment. The claimant had shown the film when suffering from an impaired mental state due to stress, it was not an error of judgment that the claimant would otherwise have made. The stress arose from his disability.
The Employment Tribunal considered the question of justification, it found that the school had legitimate aims of protecting children and ensuring that disciplinary standards were maintained. The tribunal found that a formal written warning would have been sufficient to achieve the respondent’s legitimate objectives. The tribunal concluded that the dismissal could not be justified under section 15(1)(b) and it was therefore an act of disability discrimination.
The tribunal went on to conclude by a majority that the dismissal was fair. The disciplinary panel had not accepted that the showing of the film was an error of judgment caused by stress and consequently dismissal was the appropriate sanction. The decision came within the band of reasonable responses to the conduct.
The respondent appealed against the finding of disability discrimination and the claimant appealed against the finding that the dismissal was not unfair. Both appeals were dismissed by the EAT.
In the Court of Appeal it was argued on behalf of the respondent that section 15 required the claimant to show that the respondent appreciated that the claimant’s behaviour in showing the film arose in consequence of his disability.
This argument was rejected by the Court of Appeal. Section 15 required an investigation of two distinct causative issues – (i) did A treat B unfavourably because of an identified “something” (in this case the showing of the film) and (ii) did that something arise in consequence of B’s disability ?
The first issue involved an examination of A’s state of mind to establish whether the unfavourable treatment occurred by reason of A’s attitude to the relevant something, in this case the dismissal by the respondent was because the claimant showed the film.
By contrast the claimant in Charlesworth v Dransfield Engineering Services UKEAT/0197/16/JOJ was dismissed for redundancy. There was no liability under section 15 even though the redundancy of the claimant’s job was brought into focus by the ability of the employer to carry on its business when the claimant was absent due to his disability. In that case the relevant “something” relied on by the claimant was his absence from work due to a disability related sickness but he was not dismissed because of that but because his post was redundant.
The second issue is an objective matter, whether there was a causal link between B’s disability and the relevant “something”. In this case the claimant showed the film because of the exceptionally high stress he was under arose from the effect of his disability.
The Court of Appeal did not consider that there was any inconsistency between the finding of disability discrimination but that the dismissal was not unfair. This was because the test for unfair dismissal was by reference to whether the dismissal was within the range of reasonable responses, which allowed significant latitude of judgment for the employer. By contrast the test under section 15(1)(b) was an objective one, under which the Employment Tribunal must make its own assessment.
In this case the Court of Appeal considered that a significant factor in the conclusion that the dismissal was not proportionate was its assessment that if reasonable adjustments had been put in place to reduce the claimant’s workload he would not have been subjected to the same level of stress.
Section 15 provides an important tool in the arsenal of a claimant considering a claim for disability discrimination. Claims for direct discrimination will generally be difficult to prove. Claims under section 20 of the Equality Act for failure by an employer to make a reasonable adjustment require the identification of a provision, criterion or practice which puts the disabled person at a substantial disadvantage, this identification can often be problematic.
The importance of section 15 is illustrated by two examples from the Code of Practice, which are referred to in the judgment in the Grosset case. An employer dismisses a worker because she has had 3 months’ sick leave. The employer is aware that the worker has multiple sclerosis and most of her sick-leave is disability related. The employer’s decision to dismiss would not amount to direct discrimination because the reason for the dismissal is not the disability itself. However the worker has been treated unfavourably because of something arising in consequence of her disability. She would have a claim under section 15. The position could well be different if the worker was dismissed for redundancy as in the case of Charlesworth v Dransfield, referred to above.
Another example given in the Code of Practice is that a worker is disciplined for losing her temper at work. This behaviour was out of character and was the result of pain caused by cancer, of which the employer was aware. The disciplinary treatment is because of something which arises in consequence of the worker’s disability, namely the loss of temper. There is a connection between the “something” (this being the loss of temper), that led to the treatment and the disability. It will then be for the employer to objectively justify the decision to discipline the worker.
The decision in Grosset makes it clear that that the test under section 15 is a two stage test :-
(i) did the employer treat the employee unfavourably because of an identified “something” and
(ii) did that something arise in consequence of the employee’s disability ?
There is no requirement that the claimant must prove that the respondent was aware that the behaviour (the “something” arising) arose in consequence of the disability.
Having said that, it is important to note that the claimant must prove that the behaviour arose in consequence of the disability. In some cases these consequences will be obvious but in other cases they might not be so obvious and in these cases it is incumbent on the claimant to prove the causal link, if necessary relying on medical evidence to do so.
In the examples given above the claimant who was off sick for three months will need to show that the sickness absence was related to the disability. The claimant who was disciplined for loss of temper will need to show that this loss of temper was something that arose in consequence of their disability. In this latter case it might be prudent to obtain medical evidence to show that the condition suffered from often resulted in pain, causing stress, frustration and being short-tempered. It is unwise to assume the Employment Tribunal will automatically accept that there is a causative link between the disability and the behaviour.