The Court of Appeal has confirmed that an employer may be liable for a claim of discrimination arising from disability, even if it was not aware that that the employee’s misconduct arose from their disability.

The employee was an English teacher who suffered from cystic fibrosis. His working pattern was adjusted to allow him to undertake an extensive exercise regime each day to clear his lungs. But a new head teacher, who did not know that these adjustments had been made, increased the employee’s workload. The employee became increasingly stressed and complained, but his workload was not reduced. He then showed the 18-rated film Halloween to a group of 15-16 year olds, without parental consent or the school’s knowledge. The employee was dismissed for gross misconduct, the school not accepting that this was a momentary error of judgment caused by stress.

The tribunal found that the employer had failed to make reasonable adjustments after increasing the employee’s workload, and this amounted to unfavourable treatment because of something arising in consequence of his disability, which it could not objectively justify. It concluded that the employee showed the film when suffering from an impaired mental state which was likely to be caused by his stress, which had arisen from his disability. However, the teacher was not unfairly dismissed, as the seriousness of the misconduct meant that his dismissal was within the range of reasonable responses.

The Court of Appeal confirmed the tribunal’s decision in this regard. The correct test for discrimination arising from disability claim is to first establish the unfavourable treatment, in this case, the decision to dismiss. The next step is to ask what caused that treatment, which can be broken down into two further questions:

1. what factor(s) operated on the employer’s mind or significantly influenced its unfavourable treatment?; and
2. did the employee’s misconduct arise as a consequence of their disability?

Comment

Had the employer not known about the teacher’s disability, it would have avoided liability for discrimination arising from disability. However, as it knew of the disability, it was liable even though it did not know that the misconduct arose from that disability. This was the case even though the dismissal was ‘fair’ for unfair dismissal purposes.

Before considering disciplining a disabled employee, employers should assess whether their behaviour is a result of their disability. To do so, occupational health and other medical advisers should be consulted.

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