Disability discrimination: knowledge of the employer

Treating someone less favourably because of their disability is prohibited under the Equality Act 2010.

Under the Equality Act “discrimination arising from disability” occurs where both:

• A treats B unfavourably because of something arising in consequence of B’s disability.
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

With this type of disability discrimination claim, it will not succeed if the employer had no knowledge of the disability itself. As to what the consequences of that disability may be, the EHRC Code states that “some consequences may be obvious….  Others may not be obvious, for example, having to follow a restricted diet “

When looking at whether something is as of a consequence of the disability, this has been interpreted by case law. A recent case in the Court of Appeal has looked at whether the employer knew that the misconduct arose as a consequence of the disability.

In this case, Mr G was a teacher and he suffered from Cystic Fibrosis.  Due to his condition he was required to spend up to three hours a day undertaking a physical regime to clear his lungs.

Mr G’s workload then increased, and he struggled to cope with this additional workload due to his condition.  He then suffered from stress which made his condition worse.

It was during this period that Mr G showed 15 -16 year olds the 18 rated film ‘Halloween’.   When the head teacher found out, Mr G was dismissed for gross misconduct.

At the Employment Tribunal it was held that he had not been unfairly dismissed and that the decision was in the range of reasonable responses.    However, it did consider that Mr G had suffered discrimination arising from disability.   Medical evidence available to the employer at the time of the dismissal did not suggest a link between his misconduct and his Cystic Fibrosis but medical evidence available at the time of the Tribunal showed otherwise. The employer appealed.

The Employment Appeal Tribunal dismissed the employer’s appeal.  The EAT found that it was correct that Mr G’s disability had caused or resulted in his act of misconduct, and the employer had then treated him unfavourably by dismissing him because of that misconduct.   The employer appealed to the Court of Appeal.

The Court of Appeal rejected the employer’s argument that it was not liable unless Mr G could show that it had appreciated that this behaviour was as a consequence of his disability.   There are two questions of causation that the Tribunal had to consider:

• Did the employer treat the employee unfavourably because of the identified “something”?   The “something” in Mr G’s case was that he had showed the film.
• Did that “something” arise in consequence of the employee’s disability? This was an objective test, whether there was a causal link between his Cystic Fibrosis and the “something”.   The Tribunal found there was a causal link because Mr G had shown the film due to the high stress he was suffering from, which arose from the effect of his disability under increased work demands.

This decision shows that an employer can be liable for discrimination arising from disability even where they have reasonably concluded, based on evidence, that there is no link between the employee’s actions and their disability.   This only highlights the caution that should be taken when dealing with disability-related issues in the workplace.