10 January 2017

A recent decision of the Employment Appeal Tribunal (“EAT”) has shed light on the way that tribunals should interpret the test for disability discrimination.

Disability is unique among the “protected characteristics” – the Equality Act prohibits not just direct and indirect discrimination but also unfavourable treatment that is “because of something arising in consequence of” the disability.

A classic example of this would be where a disabled employee is dismissed for disability-related absences. They may be treated no differently from any other employee with the same absence record but this treatment would be unfavourable (the employee is dismissed) and would be because of something arising in consequence of the disability (the absences). The employer would need to objectively justify that treatment, failing which it would be unlawful.

An employer will not be liable if he is unaware of the disability, but what if he is only unaware that the “something” that is the reason for his actions, is in fact related to the disability? The EAT’s recent decision in City of York Council v Grosset addresses this.

A teacher suffered from cystic fibrosis. The employer was aware of this. The employee was dismissed for showing an inappropriate 18-certificate DVD to a class of 15 and 16 year olds. The employer had considered if this action was in any way related to the teacher’s disability, and concluded on the evidence available to it, that the disability had not “caused” the teacher to act in that way. The conduct was not therefore “arising in consequence” of the disability.

At the employment tribunal hearing there was better medical evidence available. The tribunal was satisfied that an increase in workload had impacted on the employee’s health, because of his disability, and had caused considerable stress and affected his decision making powers so that he made this error of judgement. The tribunal did not criticise however, the inquiries the employer had made into the medical position.

The employment tribunal held that there had been discrimination, and this was upheld by the EAT. The employee had been treated unfavourably (dismissed) for something (showing the DVD) and the tribunal was satisfied on the medical evidence now available to it that the “something” arose in consequence of the disability. It was not relevant that the employer had been unaware of that link, or that the medical evidence now available to the tribunal was not available to the employer.

The EAT also accepted the tribunal’s finding that the unfavourable treatment (dismissal) was not justified. While the protection of children was a valid objective, the dismissal of the teacher was not a proportionate step in achieving that objective, given the disability.

The employer was unable to rely on its lack of awareness that the teacher’s actions were related to his disability, to justify its decision.

This case highlights a real contrast with the approach taken in unfair dismissal cases, where the tribunal must not second guess the employer, or try to determine an employee’s guilt or innocence, but rather must assess the employer’s actions, at the time, based on the information the employer had or reasonably could have had available. The opposite now applies in disability claims, where an employer can be liable even though it considered, and reasonably concluded, that an employee’s actions were not related to disability.

Employers also need to be aware of last year’s EAT decision in Risby v London Borough of Waltham Forest. A disabled employee was enraged because a meeting was to be held at premises which were not wheelchair accessible. His tirade of abuse included terms which were highly racially offensive. He was dismissed. The EAT held that the dismissal was for “something arising in consequence of disability”. The “something” for which he was dismissed (his abusive outburst) arose in consequence of the disability because, had he not been disabled, he would not have been angered by the failure to accommodate his wheelchair. It did not matter that the disability was not a direct or physical cause of the employee’s actions. There was sufficient connection to trigger the wording of the Equality Act. The employer would therefore need to objectively justify the decision to dismiss.

Both these cases emphasise the difficulties employers face in managing workers with a disability. The potential scope of the claim for “unfavourable treatment because of something arising in consequence of a disability” is very wide and an employer may be liable even if it reasonably believed there was no connection between the employee’s action and the disability. It is vital that employers who are dealing with issues of misconduct give the fullest consideration to the possibility of a link between the conduct and the employee’s disability, and as demonstrated in Risby, it may be sufficient if the disability is a “background factor” in the employee’s actions.

Given that disability claims can lead to uncapped awards of compensation, employers need to tread carefully, and take expert advice.

Contact: Douglas Strang Senior Associate dst@bto.co.uk T. 0141 221 8012