The case of City of York Council v Grosset has provided the Courts with the opportunity to give some definitive guidance on the meaning of section 15 of the Equality Act - that is the provision dealing with discrimination arising from disability.  Discrimination arising from disability cannot occur if the employer did not know or could not reasonably expected to know the employee had a disability.  In this case the Court of Appeal considered whether a misconduct dismissal was discriminatory in circumstances where the employer knew the employee was disabled but was unaware that the misconduct in question arose from the disability.

Mr Grosset, a teacher, suffered from cystic fibrosis, something which his employer was fully aware of.  However, the employer's record keeping was poor and when a new head teacher took over the school Mr Grosset's workload increased.  Due to a regime of physical activities undertaken by Mr Grosset to keep his condition under control he did not have the time to absorb the additional workload.  The increased workload also increased his stress levels which detrimentally impacted his condition, causing him further stress.  During this period, Mr Grosset showed an 18 rated film to his 15 year old class.  On finding out about this the school took disciplinary action and he was dismissed for gross misconduct.  

During the disciplinary proceedings Mr Grosset maintained that the showing of the film was an error of judgement arising from the high levels of stress he was under at the time in consequence of his disability. The school did not accept the conduct was brought on by stress arising from his disability (so they did not accept that there was any causative link between disability and the showing of the film)  or that Mr  Grosset's expressions of remorse were sincere. 

The employment tribunal who heard Mr Grosset's subsequent claims dismissed his unfair dismissal claim finding that the sanction was within the range of reasonable responses open to it but upheld his discrimination arising from disability claim.  The ET found that the showing of the film had been the result of stress arising in consequence of Mr Grosset's disability and they were also of the view that his remorse was sincere - in coming to these conclusions the ET had the benefit of material that had not been available to the school at the time of the dismissal including medical evidence obtained after the dismissal.  While accepting the school had a legitimate aim of protecting and safeguarding children, the decision to dismiss was not a proportionate response to Mr Grosset's conduct and accordingly the school's justification argument was unsuccessful.   

The EAT dismissed the appeals against both the finding that the dismissal was fair and the finding that the discrimination arising from disability had occurred. The discrimination case was then appealed to the Court of Appeal.  

Before the Court of Appeal it was argued that in order to be successful Mr Grosset had to show that his employer appreciated that the misconduct (the showing of the film) arose in consequence of the disability.  Because the school had not accepted there was any link between the disability and the misconduct it was not possible for Mr Grosset to do that.   

The Court of Appeal did not accept that such a finding was necessary in order to prove discrimination arising from disability.  All that was required was that the school had treated Mr Grosset unfavourably because of  something that arose in consequence of his disability.  The "something" in this case was the showing of the film.  It is then an objective question whether the showing of the film arose in consequence of the disability.  The ET had accepted that the showing of the film was a result of the exceptionally high stress that Mr Grosset was subject to, which arose from the effect of his disability when his workload increased.  There was no additional requirement that the employer had to be aware at the time of dismissal that the misconduct was caused by the disability.   

The consequence of this decision is that employers can be liable for discrimination arising from disability in circumstances where they have concluded that there is no link between the disability and an employee's misconduct.  Employers who are dealing with an employee whose defence against a misconduct charge is that the actions are a consequence of a disability would be well advised to seek medical advice on whether that is likely.  It is, of course, still open to reject the medical advice in which case they are potentially still open to a finding being made against them but the employer can at least fully consider the position in advance of making a decision.