Disability Discrimination

May 17th, 2018

City of York Council v Grosset (2018) EWCA Civ 1105 concerns a claim of discrimination arising from disability under Section 15 of the Equality Act 2010 (“EqA”) in relation to the dismissal of a teacher on grounds of gross misconduct.  The claimant was a teacher employed by the respondent. He suffers from a disability. He was employed by the respondent with full knowledge of this. At the outset various reasonable adjustments were agreed to accommodate his disability. Unfortunately, no proper record was kept of the position and it was lost sight of when a new head teacher took over at the school. The claimant’s case is that he was subjected to an increased workload which he found he could not cope with. He became very stressed under this increased pressure of work. His health suffered badly.  That in turn increased the level of stress.

Whilst subject to this high level of stress, the claimant showed a class of 15- year-olds an 18-rated horror film, entitled Halloween. He did not obtain approval for this from the school. Nor did he obtain consent from the pupils’ parents. When the school learned about this, disciplinary charges were brought against the claimant. These resulted in his summary dismissal for gross misconduct. In the disciplinary proceedings, the claimant accepted that showing the film was inappropriate and maintained that it had happened as a result of an error of judgment on his part arising from the high level of stress he was under at the time in consequence of his disability. The respondent did not accept that the showing of the film had been a result of an error of judgment brought on by stress.
The two issues which arose on the appeal concerned (1) the proper construction of Section 15(1)(a) and (2) the proper approach to determining whether a defence of justification had been made out under Section 15(1)(b).

As to the first issue, Sales LJ said:-

“36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) “something”? and (ii) did that “something” arise in consequence of B’s disability.

37. The first issue involves an examination of A’s state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A’s attitude to the relevant “something”. In this case, it is clear that the respondent dismissed the claimant because he showed the film. That is the relevant “something” for the purposes of analysis. …

38. The second issue is an objective matter, whether there is a causal link between B’s disability and the relevant “something”. In this case, on the findings of the ET there was such a causal link. The claimant showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work in the autumn term of 2013.

39. In my view, … it is not possible to spell out of section 15(1)(a) a further requirement, that A must be shown to have been aware when choosing to subject B to the unfavourable treatment in question that the relevant “something” arose in consequence of B’s disability (i.e. that A should himself be aware of the objective causation referred to in issue (ii) above). …”

“42. … there is no ambiguity in section 15(1)(a), read in the context of section 15 as a whole. However, if there were, the interpretation of section 15(1)(a) set out above is supported by the legislative history and explanatory notes for section 15 EqA and by the relevant part of the Employment Code of Practice issued by the Equality and Human Rights Commission. …

43. Section 15 EqA was a new provision of discrimination law introduced for the first time in the Equality Act 2010, to restore the protection for disabled people beyond the more limited view of pre-existing discrimination law in section 5 of the Disability Discrimination Act 1995 which had eventually been adopted by the House of Lords in Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399. …”

“45. The explanatory notes indicate that Parliament intended section 15 EqA to strike a new balance of interests between a claimant and a defendant in a discrimination case where the alleged discrimination is not directly by reference to the claimant’s disability, but arises from detrimental treatment by reference to something else which arises from the claimant’s disability. There is no suggestion that the defendant must have known that this “something” must have arisen from the claimant’s disability; on the contrary, the explanation indicates that Parliament intended to reverse the practical effect of the decision in Malcolm, as regards the former requirement that the defendant should be aware that the matter which caused him to act unfavourably towards the claimant arose in consequence of the claimant’s disability.”

46. Further, the second example given in the explanatory notes indicates an intention that liability can be established under subsection 15(1) even though the defendant does not know that the “something” (in that case, the slurred speech) arose from the claimant’s disability. The example indicates that the relevant defence would be under subsection 15(2), if the landlord is able to avail himself of it.

47. It is clear that, as stated in the explanatory notes, section 15 EqA establishes a particular balance between a person suffering from a disability and a defendant. The risk of unfavourable treatment because of something that has arisen from the disability is cast onto the defendant rather than the claimant. If the defendant does not know that the claimant suffers from a disability, he has a defence. But if he does know that there is a disability, he would be wise to look into the matter more carefully before taking unfavourable action. The defendant will also have a defence if he is able to justify the unfavourable treatment under subsection 15(1)(b).

48. In the present case, the claimant maintained to the respondent that the showing of the film was down to an error of judgment arising in consequence of his disability. He satisfied the ET that this was indeed the case, although the respondent did not believe him. In those circumstances, it seems clear that Parliament intended that the claimant should have the protection of section 15, subject to the issue of justification under subsection 15(1)(b).”

“51. … para. 5.9 of the Code of Practice also supports the claimant’s submissions in relation to the first issue on the appeal. It does not suggest that liability depends upon the employer being aware that the “something” in question has arisen in consequence of the employee’s disability. …

52. In relation to the first issue in the appeal, I also note and take comfort from the fact that a long line of experienced judges in the EAT have come to the same conclusion regarding the proper interpretation of subsection 15(1)(a), namely that there is no requirement that the defendant should be aware that the “something” referred to in the provision has occurred in consequence of the claimant’s disability. …”

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