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Discrimination arising from disability decision leading to £180,000 award upheld

Makbool Javaid

In City of York Council v Grosset, Grosset (G) is a disabled person by virtue of the fact that he suffers from cystic fibrosis. G was Head of English at a secondary school. He had been required to take on additional workload and other pressures which he could not cope with given the difficulties arising from his disability. G showed an 18-rated film (Halloween) to a class of vulnerable 15- and 16-year-olds. Shortly afterwards he was signed off as unfit for work suffering from stress, which was impacting upon his lung function.

The school discovered G had shown the film. He accepted that doing so had been inappropriate and regrettable, but argued he had been affected by stress, contributed to by his cystic fibrosis. He was summarily dismissed for gross misconduct, i.e. showing an X-rated film to teenagers without obtaining consent or approval and breaching the School’s safeguarding policy. An ET found that G’s dismissal amounted to discrimination because of ‘something’ arising in consequence of G’s disability under S.15 of the Equality Act 2010, which the employer had not justified and awarded him £180,000. The employer appealed against the finding of disability discrimination.

The EAT rejected the appeal. Applying case law correctly, the ET had firstly identified the ‘something’ which caused the employer to treat G unfavourably, i.e. the factor (conscious or subconscious) in the mind of the decision taker leading to the action being taken. In this case the ‘something’ was G’s misconduct by inappropriately showing an 18-rated film to a class of vulnerable 15- and 16-year-olds. The ET then decided on an objective basis, given the evidence before it, including medical opinion, that the ‘something’ – the inappropriate showing of the film – did arise as a consequence of G’s disability, i.e. his impaired mental state.

On the question of justification, the ET had defined the employer’s legitimate aim – the protection of the children and ensuring disciplinary standards were maintained – and had then carried out the balancing exercise required of it by reference to that aim. Given the seriousness of the error of judgement, dismissal might well be proportionate, but the medical evidence demonstrated that G was significantly impaired by stress and the ET reached the permissible conclusion that dismissal was not a proportionate response when the disadvantage to G was put into the balance.

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