What if gross misconduct is caused by a disability?

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In the case of City of York Council v Grosset (“Mr Grosset”), the Court of Appeal confirmed that dismissing an employee for gross misconduct could amount to discrimination arising from a disability under the Equality Act 2010 even when the dismissal was fair. Mr Grosset was employed as the Head of English at a school maintained by the City of York Council (“the School”). He suffers from cystic fibrosis. The School made reasonable adjustments from the beginning to accommodate his disability.

Due to Mr Grosset’s condition, he was required to spend approximately three hours a day doing exercise to clear his lungs. After a new headteacher was appointed, Mr Grosset’s workload increased. The new headteacher was unaware of the reasonable adjustments that had been made to accommodate Mr Grosset’s disability. As a result, Mr Gosset struggled to cope with his increased workload, ultimately suffered from stress, which consequently aggravated his cystic fibrosis.

During this period of increased workload and stress, Mr Grosset taught two lessons to students aged 15 and 16, where he showed the 18-rated film, Halloween. Once the headteacher became aware of this, he suspended Mr Grosset.

Mr Grosset argued that showing the film had been a momentary lapse in judgement caused by the increased stress, which arose as a consequence of his disability. The School did not accept Mr Grosset’s reasons, and dismissed him for gross misconduct.

Section 15 of the Equality Act provides protection for people who are discriminated against because of something arising from their disability – i.e. who are treated less favourably because of the disability itself, but because of something caused by that disability. A good example might be where an employer dismisses someone who has taken excessive sick leave as a result of his/her disability. In those circumstances, it is the absence that causes the dismissal, not the disability. But, because the absence arises from the disability, section 15 is engaged.

The question the courts had to grapple with was whether, in order for Mr Grosset to bring a claim under section 15, he would have to show that the School was aware that the issue had, in fact, arisen from a disability.

The Tribunal held that Mr Grosset had not been unfairly dismissed, because the School’s decision was within the range of reasonable responses available to it given his conduct. However, the Tribunal did find that Mr Grosset had suffered discrimination arising from disability under section 15 because his misconduct arose from his disability.

The School appealed to the EAT in relation to the discrimination finding, and Mr Grosset cross-appealed about the unfair dismissal claim. The EAT dismissed both appeals. The School then appealed to the Court of Appeal.

The Court of Appeal unanimously dismissed the School’s appeal and upheld the original decision. It was not relevant to a claim of disability arising from discrimination whether the employer knew or ought to have known that the misconduct arose from the disability, provided they knew or ought to have known about the disability. The decision to dismiss was not a proportionate means of achieving a legitimate aim for the purposes of the Equality Act, though was reasonable for the purposes of unfair dismissal law.

This case reminds employers of the need to ensure that new managers are aware of disabilities and reasonable adjustments. The case suggests that, even if you dismiss an employee for a fair reason (the misconduct) and you conclude that the disability did not cause the misconduct, there is still a chance that an employee could bring a successful claim under section 15 if the courts take the view that the misconduct arose from the disability. When conducting disciplinary investigations an employer should always be asking itself whether a disability is contributing to any alleged misconduct and take steps (such as medical reports) to verify any causal connection between disability and misconduct.

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