The dismissal of an English teacher for showing 18-rated film Halloween to a class of 15 and 16-year-olds was fair, however it did amount to discrimination arising from his disability under section 15 of the Equality Act 2010 (the EqA).
The Court of Appeal decision in City of York Council v P J Grosset underlines how wide the scope of claims under section 15 of the EqA is, as well as providing some helpful confirmation on how to assess its application. Indeed, one of the judges refers to this case as "an important landmark in the development of disability discrimination" and hopes the law in this area can now be viewed as more settled.
Mr Grosset was employed by the respondent as an English teacher. He suffers from cystic fibrosis, accepted by the respondent to amount to a disability under the EqA. Various reasonable adjustments were agreed and implemented to support him.
He self-managed his condition by undertaking around three hours of rigorous exercise each day.
The agreed reasonable adjustments were overlooked when a new head teacher took over as no record had been made of them.
Due to the English department under performing, a number of changes were made to that department including a new syllabus. The new head teacher also introduced Focus Fortnights to encourage greater reflection on performance, effectively a mini-inspection. This increased the claimant's workload and scrutiny of him which, in turn, added to his feeling of pressure at work. The claimant asked for a change in his tasks and reduction of his workload. The head teacher did agree to an occupational health referral but this was delayed. An occasional day away from teaching was offered but no regular reduction in his tasks or workload.
The claimant passed his annual appraisal but by this juncture his lung function had severely deteriorated and he was concerned about the prospect of potentially needing a double lung transplant. The English department was then selected for a second Focus Fortnight.
Against this background, the claimant decided to show pupils aged 15 and 16-years-old the18-rated film Halloween over a Friday and Monday after the first exams under the new syllabus. He did not get the consent of the school or parents to do so.
The claimant was suspended and then summarily dismissed by a panel of governors. His appeal was not upheld by a different panel of governors. The internal panels based their decision on two key points:
- They did not accept the claimant's contention that this was an error of judgement caused by stress resulting from his increased workload and his disability;
- They did not consider the claimant had shown appropriate remorse or recognition of the seriousness of what he had done.
The claimant brought claims a claim for unfair dismissal, as well as a claim under section 15 of the EqA for discrimination arising from disability and for a failure to make reasonable adjustments under sections 20 and 21 of the EqA.
He lost his unfair dismissal claim but was successful with his other claims.
The Court of Appeal has re-iterated that the tests for unfair dismissal and under section 15 are different. For unfair dismissal, the question is whether dismissal was within the range of reasonable responses which gives the employer "a significant latitude". Under section 15, the test is an objective one and the Employment Tribunal must make its own decision.
An employer has two defences to a section 15 claim:
- It was not aware and could not reasonably have been aware that the individual in question was disabled under the EqA.
- The treatment in question was a proportionate means of achieving a legitimate aim (justification defence).
In this case the respondent tried to argue a third defence, which was that in terms of the unfavourable treatment "because of something arising in consequence of" the claimant's disability, it did not know that the claimant's behaviour in deciding to show the film arose in consequence of stress arising from his disability. That argument was rejected by the Court of Appeal, as adding a limb to section 15 that did not exist and which would otherwise undermine the protection to disabled employees provided by section 15. For an employer to be liable under section 15, it is not necessary for it to be aware of the precise causal link between the disability and the "something" referred to under section 15.
A number of points emerge from this case which employers should be mindful of to reduce their exposure to section 15 EqA claims:
- Involve occupational health as early as possible (and other appropriate experts) and ensure any recommendations are considered and implemented where appropriate;
- Gather as much evidence as possible as all relevant evidence (even that post-dating dismissal) can be taken into account when a court or tribunal is deciding the section 15 claim;
- Remember a dismissal might be fair but still result in a successful section 15 claim;
- Enhance the chances of having a justification defence by thinking about the organisation's legitimate aim(s) in dismissing and whether dismissal is necessary to achieve that. In this case, the respondent had legitimate aims (protecting children and upholding disciplinary standards) but a formal warning would have been sufficient to achieve those aims so dismissal was not a proportionate response;
- Keep under review whether reasonable adjustments have been made and maintained. Failure to do so is relevant to the outcome of any accompanying section 15 claim;
- The only knowledge requirement under section 15 is that the employer have actual or constructive knowledge of the disability.