Discrimination arising from disability - what does an employer need to know?

Janet Fielding: "Hello and welcome to this Gowling WLG Podcast. I am Jane Fielding, I am head of the Employment Labour and Equalities Team here and I am going to be discussing a Court of Appeal decision on disability discrimination and unfair dismissal with my team partner Martin Chitty.

The case we are going to be talking about is the City of York Council v Grosset and the reason we are going to be talking about this case is not that the result in itself was a particular surprise but it is important because it explores two key issues. It explores the boundaries of discrimination arising from disability which is in Section 15 of the Equality Act and it also looks at the interplay between the different tests for unfair dismissal and Section 15 of that Act.

We are going to look at those two issues and explore some of the challenges that this case now poses for employers but before we do that Martin is going to give us some of the facts that is helpful to bear in mind as we have that discussion."

Martin Chitty: "I think it is probably useful to divide the facts into two parts. The first part is the sort of slightly longer term view about Mr Grosset's position. This is a case in which there was no dispute that he was disabled. He had got cystic fibrosis which is a severe and very disabling condition and requires a considerable amount of very rigorous and quite uncomfortable physical exercise in order to manage it and that was one of the issues which he faced. He had joined the school as Head of English some years before these events occurred and he made it clear to the school at the time that he was disabled and as part of that employment process they agreed to put in place certain adjustments, reasonable adjustments as we would call them, which would help him both work and manage the condition on a day to day basis. That was in 2011.

If we roll forward to 2013 the school had hit some problems with its performance in the GCSE's and in 2013 it was made a focus that they needed to improve their performance in English and through a lot of extra work that was achieved and a lot of that extra work was put in by Mr Grosset. Unfortunately for the next exam cycle the whole process was changed so that they needed to focus on some other performance issues, this is the challenge of working in education of course, that the goal posts get moved. The challenge for Mr Grosset in this situation was that he found it more difficult than most to adjust to the movement of those goalposts simply because his general care regime did not allow for significant changes in workload. He needed more time to adapt and indeed those sorts of changes and the extra pressure and stress which they brought produced some side effects in terms of his overall condition. Anyway, things progressed, he passed his appraisal in the following year and then the new head who had come into post in 2013 decided they needed to carry out a focus on certain subject areas over a concentrated focussed two week period and for whatever reason the first department to come under focus in that way was the English Department."

Jane: "Mr Grosset's department?"

Martin: "Mr Grosset's department and that in retrospect is where things started to fall apart because Mr Grosset found that additional focus and the pressure that came with it very difficult. It exacerbated his condition, it led to deteriorated lung function and in the latter part of 2013 he was signed off as unfit to work simply because of his lung function was no longer coping.

That is the historical medical background to the situation. Then we come onto the facts which led to his dismissal. For whatever reason Mr Grosset had charge of a group of 15 and 16 year olds; year 11 in education speak, and decided that rather than teaching them about delivering narrative development he would show them a copy of what is generally described as a slasher movie. An unfortunate choice for many, many reasons. This led to a suspension and investigation, disciplinary hearing, a decision to dismiss and then an appeal against the dismissal and then he launched into the Tribunal proceedings.

At that point it is probably useful to reflect on what people knew in this process. They knew that he was disabled but the problem was that they had a change of head and the new head was not as aware of the adjustments that had been made and the allowances to help Mr Grosset as his predecessor had been. It is also fair to say that Mr Grosset made clear that in part his condition, the stress aspect of it, led to poor judgement and he said "that is one of the reasons why in retrospect I decided to show the film. I now realise that it was a mistake" but that admission was not seen as enough, it was not seen as sufficiently contrite, if you like, and so they pursued the disciplinary hearing to a conclusion.  That is probably a point at which to leave it because then we launch into the Tribunal proceedings."

Jane : "If we look first at the discrimination arising from disability then, Section 15, if we unpack that a bit the Tribunal had to decide originally, did the Council treat Mr Grosset unfavourably because of something arising in consequence of his disability and if they did, could they show it was a proportionate means of achieving a legitimate aim and so defeat a claim for discrimination arising from disability?

The first limb of that is the first one we need to look at. The unfavourable treatment was clearly dismissal - hard to argue that is not unfavourable treatment. The something is showing the film and the key issue really is: did that something, did showing the film, arise from his cystic fibrosis? What the Council were trying to argue was that they had to have knowledge of that link for him to get home on this Section 15 claim and because they said they did not have knowledge of it in the sense that they did not know it was definitely made out, even though he had claimed that link was there, then he could not succeed on his claim.

The Employment Appeal Tribunal and now the Court of Appeal have said no, it is actually an objective test. What you are looking at is, was that link made out? If it is and the medical evidence that the Tribunal had the benefit of (which the Council seemingly did not although they had some) on that evidence, there clearly was a link. Actually when you listen to the facts as you talked them through Martin, it is not hard to see how you get from somebody with a very serious condition which they spend a lot of time trying to manage, having that time to manage it squeezed, being worried about the impact on their health and then it resulting in a poor decision being made by them. It is not hard to see how you get there.

What the Court of Appeal is confirming really but in a very clear Judgement is that Section 15 is all about striking the right balance for claimants to make a case of detriment for something arising from their disability rather than the disability itself and then allowing the respondent, the Council in this case, the opportunity to defend their actions on proportionality grounds. They have some interesting things to say about proportionality as well do they not Martin?"

Martin: "That is a good point. It leads naturally onto the test that applies in unfair dismissal cases in which the situation then went the opposite way and they found in favour of the employer. But focussing first on proportionality. The issue for the employer is they are entitled to take action in circumstances like this if they can show that their actions are a proportionate means of achieving a legitimate end. So the end here in an educational situation is the safeguarding of children. That is of paramount importance and the group in question were vulnerable in terms both of age and in terms of some of their personal issues and that came out quite clearly in the disciplinary hearing. The question was as a defence could the Council say that it is obvious that it is proportionate to dismiss where somebody shows a group of this type something so wholly inappropriate, it is simply not what we expect of teachers and more than that it is simply not acceptable.

This is where it becomes interesting because the Tribunal and the other courts all approach this in the same way. They are saying we can see that action needs to be taken but is dismissal on the grounds of gross misconduct the only action.  Is it the only way of ensuring that this never happens again? Would it not have been appropriate and more proportionate, for instance to have given a final written warning and make sure that Mr Grosset would not behave in this way and that was a conclusion frankly which they reached that it was not the only way of meeting that legitimate aim, they should have done something else. The other issue to bear in mind which we have not looked at too much is that there is also part of this claim which relates to reasonable adjustments and whether and to what extent the Council should have done more than they did either in altering the way in which he worked or ensuring that the degree of pressure which was applied in the Autumn of 2013 did not come to have this impact on him. Because they quite clearly found that the Council or the school and the head should have done more and made reasonable adjustments quite clearly they are on the back foot at this point and the Tribunal did not conflate the two issues but you can see that having won on the first point about reasonable adjustments the fact that this had been avoidable if they had done it, certainly everybody would have been in a better place. The proportionality argument from the employer's perspective is always going to be about OK what are the alternatives at this point which get me to where I need to be and a knee jerk reaction, if you like, about dismissal is not always the proportionate response."

Jane: "No, what it shows is as is often the case with the proportionality defence the legitimate aim is usually not hard to make out, it is the whole "and what did you do in response to that aim to try and achieve it?  Were you striking the right balance there?" Clearly on the evidence here the Tribunal took a very different view of Mr Grosset's attitude and remorse as you say to what had happened from the internal processes where they did not seem to be convinced by that."

Martin: "No and in fact the extracts from the school's internal disciplinary procedure make it quite clear that they gave very little weight to his argument about that at all, which is interesting but it is also something to note, not just in education but in all circumstances, that you have to address the issues and articulate very clearly the evidence you have heard and how you weighed up that evidence and why you reached the conclusion that you have. That leads us to a separate point which is about unfair dismissal. My question would be if Mr Grosset succeeds on the lack of proportionate action on the part of the employer how come the school and the City of York Council manage to win the unfair dismissal claim for sacking him in the first place?"

Jane: "A very good question! As I said that is the second interesting and important aspect of the Court of Appeal's decision and they say that if you look at the different tests and there are different tests for whether an unfair dismissal is defendable as opposed to some sort of detriment, whether that is a proportionate means of achieving a legitimate aim. They are different. So an unfair dismissal as anybody who has been in an unfair scenario knows, is about showing as an employer that the decision to dismiss was within a range of reasonable responses. The Tribunals are specifically not allowed to substitute their own decision of what should have happened. You have got an element of subjectivity there, there is a spectrum of what is reasonable so it is sort of subjectivity with an objective boundary which is set by the Tribunal. What this case is saying on proportionality is it is the Tribunal that decides whether objectively the defence is made out. You have to look at what was in the employer's mind at the time they took the decision clearly, but conversely in a proportionality defence to a discrimination claim the Tribunal decides there is not a range of reasonable responses -they decide what the answer is."

Martin: "So in effect an unfair dismissal is down to what was in the employer's mind and their view of the situation and in the discrimination case the proportionality sits entirely with the Court's view of it after the event and possibly and as in this case, in light of further evidence."

Jane: "That is right and it is important in this case that the Tribunal had the benefit, not only of Mr Grosset's evidence under cross-examination and after he had had more chance to consider it potentially, but they also apparently had more medical evidence than was available in the internal process. I think what was interesting about this case as well, and we will come onto to talk about that in terms of what it actually means for employers handling these situations in practice, is he did specifically make the link as you said. He said "I do think what I did was linked to the stress I was suffering as a result of my condition" and they did have some medical evidence available in the internal process but it is slightly frustrating in the Tribunal Judgement that we are not clear on what that medical evidence is, it is probably for a very good reason, but we do not know how far it was explored internally and what extra evidence came out in front of the Tribunal, but it was clearly enough for the Tribunal to come to a different decision.

If we look at the key takeaways for employers I think the first one you touched on when we were talking about the proportionality defence is it is key to any defence of discrimination claim like this that the employer has complied with a duty to make reasonable adjustments. It is not as stark as it used to be under the old law where if you had not, you could not even try to justify. That bit of the law went with the Equality Act but clearly this Judgement is saying you are going to have an uphill struggle if you cannot show that you have made the reasonable adjustments you should have done."

Martin: "Yes, I think that is, as you say, very clear from the decision in this case simply because by failing to make reasonable adjustments they exacerbated the situation and I think in the Court's mind quite clearly that led to the situation which then developed because it put Mr Grosset in a situation where he was likely to become more stressed than in the Court's view was necessary, was avoidable and that is really what a reasonable adjustment is all about is it not?

Jane: "Yes, trying to create that level playing field. The second key takeaway is the importance of getting medical evidence or at least addressing your mind to it in a misconduct case where the employee is disabled. What this case is not saying is if as the employer you do not know the employee you are trying to discipline or about to discipline is disabled and there is nothing to put you on notice that they are, it is not the case that you can be fixed with this type of discrimination in that scenario. Section 15 specifically says it the employer can show that they did not know and could not reasonably have been aware of the person being disabled then Section 15 is not made out. But we also need to explore a couple of other scenarios I think in light of this case."

Martin: "The first of those points or scenarios to discuss is a situation where the employer knows that the individual is disabled and in the context of mounting their defence the individual is saying yes but this is linked to my underlying condition. It is not an immediate consequence of it but it is connected with it. It is because of this underlying condition and in those circumstances it is going to be very difficult for an employer to defend its position unless and until it has actually gone away and got some independent medical advice and I say that realising that that is likely to slow the process down, it is likely to incur further costs and delay but simply because if you do not do that you are effectively closing your mind to the possibility. So you have got to be seen to address it and then take that on board. So that is the first of those instances and that is one which I think with many employers where they aware of their employees' underlying conditions that is a risk but it is a very expensive risk if you do not do it, that is the problem."

Jane: "And the third scenario is probably the most challenging which is where the employer does know the person is disabled but the person in their defence in the disciplinary does not make a link with their disability, there is not anything particularly to put the employer on notice that there is a link. ut what this case is saying is because it is an objective test if both the employer and the employee are wrong on that and actually medical evidence shows that there was a link then this case is saying that Section 15 or at least that first part of it will be made out. Then obviously you get onto whether it is proportionate action on the part of the employer. Really that is the challenging area that employers re really going to have to think about. So they know someone is disabled, there is no obvious connection with the misconduct they are being disciplined for, should they still go off and get that medical evidence?"

Martin: "I absolutely agree and in many cases I think if employers want to take the most conservative and risk averse route in any situation like this but particularly where they know of a disability they ought to be considering very carefully looking for that expert input particularly or indeed in cases even where the individual is not raising that as a defence, because the individual may not have full knowledge and understanding of the impact of the condition on their own behaviour."

Jane: "That is right or they might be in denial about it or they may genuinely just never have thought that there might be a connection. So as I said at the start this case does not make new law but it really does set out very clearly how Section 15 works, how it interlinks with unfair dismissal and it really highlights the importance of making reasonable adjustments where the trigger is there and proceeding with caution through a disciplinary process with somebody with a disability in case there is a link there. We are not saying you have to get medical advice but you may be taking quite a big risk if you do not and that would need to be a calculated risk in our suggestion.

Thank you for listening. I hope that has been helpful"