An employer will not be liable for disability discrimination unless it knew about the employee’s disability (or should have known about it). But what if an employer disciplines someone for misconduct that they don’t know is connected to a disability?
This is what happened to Mr Grosset. He was teacher and worked for City of York Council. He also had cystic fibrosis, which the Council accepted was a disability.
After a change in management, his workload increased and he struggled to cope. He suffered from stress which made his cystic fibrosis worse. During this time, he showed the 18-rated film ‘Halloween’ to a group of 15 year olds. He later said this was an error of judgement caused by the stress which was linked to his disability.
The school disciplined Mr Gossett and subsequently dismissed him.
At the time of the dismissal, medical evidence did not link the decision to show the film or the error of judgement to Mr Grosset’s disability. Mr Gossett brought a claim in the Employment Tribunal. At the hearing, new medical evidence linked the misconduct to his disability.
The Employment Appeal Tribunal agreed that Mr Grosset had suffered discrimination arising from disability. The Council did not know that the misconduct was linked to his disability at the time of dismissal – however, knowledge is not relevant in such claims.
What does this mean for employers?
This case highlights the different ‘knowledge’ requirements in discrimination claims. Employers will often be taking a higher risk when disciplining someone with a disability, although often it will be unavoidable.
“If there is a chance that the reason for the treatment might arise from a disability, employers should carefully test their actions, to ensure they are proportionate. If they are not, employers are unlikely to be able to justify their action and are likely to lose a disability discrimination claim should the employee bring such a claim.”
When disciplining an employee whom they know to be disabled, or subjecting them to other unfavourable treatment, employers should consider whether the disabled employee’s conduct, or performance issues might stem – in any way- from their disability.
The connection between the disability and the misconduct or poor performance may not be obvious. Employers should be particularly alive to this where employees themselves claim this is the case, but employers also need to think about this where the employee does not raise the possibility. Taking thorough medical advice about this at the time will be a crucial step.
You can find out more about how to avoid making an expensive mistake at our next seminar here.