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Quite often, employers think that in order for discrimination to occur, the discriminatory treatment must be overtly obvious.
6 June 2018
Insight
Many employers believe that in a disability discrimination case, the employee must have been treated badly because of something that is very obvious to do with the employee’s disability, however, this is not necessarily always the case.
Much more often, potential discriminatory treatment is much more subtle and can occur completely innocently on the part of the employer. The following case illustrates this very principle.
Mr Grosset was a teacher who suffered from cystic fibrosis, which his employer, the City of York Council, knew about. He was under increasing pressure at work which was compounded by the time-consuming exercise regime his condition required.
During this time, Mr Grosset showed an 18-rated film to a class of 15-year-olds without approval from the school or parents. He was ultimately dismissed for this reason.
Mr Grosset brought a claim for disability discrimination and was successful. The reasoning was that medical evidence (which was not available to the employer at the time of the disciplinary hearing) showed that Mr Grosset’s mental state was impaired at the time of the incident due to stress which arose from his disability (i.e. his cystic fibrosis).
The Tribunal accepted that, because of the stress Mr Grosset was under, he made an error in judgment in showing the film. In turn, therefore, the reason that Mr Grosset was dismissed was that of something that arose in consequence of his disability (i.e. stress).
The Tribunal decided that dismissal was not justified because a formal written warning would have been sufficient to achieve the employer’s legitimate aim of safeguarding children.
The Tribunal’s decision was upheld by both the Employment Appeal Tribunal and the Court of Appeal. It was made clear that, even if the employer does not actually know that there is a link between the disability and the misconduct, this does not matter for the purposes of the claim as the question of whether there has been unfavourable treatment arising from something to do with disability is an objection question and therefore a matter of fact.
If you are faced with an employee that has a potential disability, you should always turn your mind to whether the disability could in any way whatsoever have had a bearing on whatever the employee has done. Even if you do not think that it could have, it is always advisable to speak to the employee about it and obtain medical evidence. Ignorance is not a defence and it is always better to go into something with your eyes open and knowing the whole picture.
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