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The concept of “discrimination arising from disability” was introduced by Equality Act 2010. It replaced the former concept of “disability-related discrimination”, which had become very difficult for claimants to establish due to a decision by the House of Lords which altered the way in which comparators in such cases were viewed. The Government felt that it needed to reduce the burden on claimants by making it easier for them to establish a case where they had experienced detrimental treatment because of their disability.

What is discrimination arising from disability?

Section 15(1) of the Equality act states that discrimination arising from disability occurs where:

(a) A treats B unfavourably because of something arising in consequence of B’s disability; and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This differs from direct discrimination, where A treats B less favourably that they would treat others because of their disability; for example deciding not to promote someone because they are disabled. It must also be distinguished from indirect discrimination, which is where A applies a provision, criterion or practice which puts those with B’s disability at a particular disadvantage compared to those who do not have that disability, and A cannot justify this by showing this PCP to be a proportionate means of achieving a legitimate aim.

Although at first glance discrimination arising from disability may appear similar to indirect discrimination, it can sometimes be easier for individuals to establish discrimination arising from disability because such a claim does not involve the individual comparing themselves to anyone else, or showing that people with their disability are at a particular disadvantage. All that is required is for them to show that there was unfavourable treatment towards them in particular. It is to be noted however that it is a defence to a claim of disability arising from disability for the employer to show that it did not know and could not reasonably have been expected to know that an employee had a disability.

What does an employee need to show to establish a case of discrimination arising from disability?

In May the Court of Appeal examined what an employee requires to establish to make out a claim for discrimination arising from disability. In City of York Council v Grosset, an English teacher who suffered from cystic fibrosis had agreed reasonable adjustments with the school where he worked, but these were lost sight of when a new head teacher took over. His workload increased which caused him difficulty as he had to undertake a time consuming exercise regime to keep his illness under control, and he became very stressed. During this time, he showed the movie Halloween, which was rated 18, to a class of 15-year olds, without obtaining parental consent or the school’s approval. Mr Grosset was dismissed, despite telling the school that his error in judgement had been due to his stress levels.

Although Mr Grosset’s claim for unfair dismissal was unsuccessful, he succeeded in claiming discrimination arising from disability, and this was upheld by the Employment Appeal Tribunal.

In the Court of Appeal, the employer accepted that Mr Grosset’s dismissal was unfavourable treatment, and that Mr Grosset’s showing of the film was a consequence of his disability. Furthermore it was not disputed that it knew that Mr Grosset had a disability.  However, it argued that to satisfy the test for discrimination arising from disability, Mr Grosset also had to show that the school appreciated that Mr Grosset’s behaviour when showing the film was due to the disability, which they said Mr Grosset had not established.

However, the Court of Appeal rejected this interpretation of the Equality Act, upholding the original judgement. It held that what was required to make out discrimination arising from disability was to show firstly that there was unfavourable treatment because of an identified “something”  and that secondly that “something”  was a consequence of the disability.

In this case, on the first point, the employer had dismissed Mr Grosset because he had shown the film. That was the relevant “something”. On the second point the issue was whether there was a causal connection between the disability and the “something”.  The Tribunal had found that there was such a connection as Mr Grosset had shown the film due to high stress which arose from the effect of his disability under increased work demands.    That was simply an objective test and there was no requirement that an employer had to be shown to be aware that the “something” arose in consequence of the disability..

In relation to objectively justifying its behaviour, the school was also unsuccessful. The Court did not think it was inconsistent that the claim for unfair dismissal had been rejected but that the claim for discrimination arising from disability was successful. The Court noted that in conduct dismissal cases employers have to act within “a band of reasonable responses.” This is a different test to the one relating to objectively justifying discrimination arising from disability. It noted that the incident would very likely not have occurred if reasonable adjustments had been made for Mr Grosset, such as reducing his workload and thereby his stress levels, and therefore the actions of the school were not proportionate.

Comment

Employers should view this case as a reminder that when dealing with the misconduct allegations in relation to an employee who is disabled, they should examine carefully whether the actions of the employee could be connected to the disability, and if necessary, obtain occupational health advice before making a decision. It should also be noted that the issues that arose in Grosset could potentially have been avoided if the school had kept proper records of the agreed reasonable adjustments and passed this information on to the new head teacher. It is important to keep full and proper records and to make sure all appropriate managers are aware of such adjustments and act in accordance with them.

Despite it having been recognised in the recent decision of O’Brien v Bolton St Catherine’s Academy that it is unfortunate for there to be the apparently contradictory outcome that a dismissal is, on the one hand, fair, yet on the other discriminatory, the case also emphasizes that the tests for unfair dismissal and discrimination arising from disability are quite distinct and so the employer may well suffer such “double jeopardy” should a disabled person challenge their dismissal.
 
If you have any questions with regard to the issues raised above please get in touch with a member of the Stronachs Employment Team.

Annika Neukirch, Solicitor

Chambers UK 2018

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