Can a dismissal amount to unfavourable treatment under section 15 of The Equality Act 2010 if the employer did not know that the disability was connected to the misconduct?

Yes, held the Court of Appeal in City of York Council v Grosset [2018] EWCA Civ 1105.

Dismissal is plainly an act of unfavourable treatment. Provided a claimant can show a causal connection between unfavourable treatment and disability this will amount to discrimination arising in consequence of disability.

Mr Grosset, a teacher with cystic fibrosis, was stressed by workload. He was disciplined then dismissed for gross misconduct for showing an 18-rated film to vulnerable adolescents. He asserted this was an error of judgment arising from stress which was linked to disability.

The Court of Appeal held there was no inconsistency between the rejection of the unfair dismissal claim below and the upholding of the section 15 claim. The first test is about the band of reasonable responses and allows the respondent considerable latitude. By contrast section 15 demands an objective test permitting the tribunal to make its own assessment. As to justification the tribunal was entitled to find that dismissal was a disproportionate response.

Written by Karen Jackson

First appeared on Daniel Barnett’s Employment Law Bulletin