Discrimination: something arising from disability

It is no secret that there are immense pressures upon teaching staff in UK schools at present. Teacher shortages, increased workloads, and constant assessments have lead to stressful working environments across the country. These environments can affect some more than others, particularly those with disabilities. In the recent case of City of York Council v Grosset[1], the Employment Appeal Tribunal reviewed the law on discrimination arising from disability under section 15 of the Equality Act 2010, and upheld a decision of the Employment Tribunal that Mr Grosset – an English teacher– had been discriminated against due to something arising from his disability.

 

City of York Council v Grosset

 

The Claimant, Mr Grosset, suffered from cystic fibrosis, meaning he was disabled for the purposes of the Equality Act 2010. He disclosed his condition on applying for the position of Head of English at the Joseph Rowntree Secondary School, which is a school operated by the Respondent (City of York Council). The Respondent knew about the Claimant’s disability, and reasonable adjustments were put in place by the then Head Teacher when the Claimant commenced his position in 2011.

 

In September 2013, following the appointment of a new Head Teacher, Mr Crane, significant additional burdens were placed on his department in an attempt to improve the performance standards of the school. One such innovation was something called a “Focus Fortnight”, which led to a significantly increased workload for that period. Towards the end of the first Focus Fortnight, the Claimant wrote a complaint to Mr Crane, expressing that he considered that the Fortnight introduced unreasonable deadlines, workloads and pressure. He also made reference to his cystic fibrosis requesting for a consideration of a reduction or prioritisation of his tasks so he could effectively manage his condition: something that would ordinarily take him several gruelling hours of exercise and other lung management techniques each day. After some delay, the Claimant was referred to an Occupational Health Therapist. By the time he had received an appointment in December 2013, however, he had been off with stress for several weeks.

 

In November 2013, the Claimant’s Department was selected to participate in another “Focus Fortnight”, and was required to meet all the demands that period entailed. By the end of November 2013, the Claimant’s health had reached a stage where he felt he could no longer work. His stress was impacting on his lung function and he was signed off as unfit to work by his GP.

 

During his absence, it transpired that the pupils in his Year 11 class (comprised of 15 and 16 year olds) had been shown an 18-rated film during the November “Focus Fortnight”, as part of their coursework. The Film was an original 1978 movie called Halloween, which - while perhaps not as shocking as some of the more contemporary horror films - is described by the British Board of Film Classification with the following warning:

 

“Strong threat runs throughout the work, with an early flashback to the killing of a teenage girl and the later stalking and killing of young people in the quiet suburb”. 

 

Although no complaints were received from pupils or parents about the film, Mr Crane considered this to have been highly inappropriate, and warned the Claimant that he would be investigated for ostensible gross-misconduct. The Claimant accepted the film had been inappropriate but argued that he had been affected by stress, contributed to by his cystic fibrosis. It can be noted that during this period, the Claimant’s medical evidence revealed his lung capacity had fallen to an all time low. On being referred to a disciplinary hearing, which was presided over by the school’s governors, the Claimant was dismissed from his position and told he could not return to the school.

 

The Claimant brought a claim under section 15 of the Equality Act 2010: discrimination because of something arising in consequence of disability.

 

Section 15 of the Act states:

 

  1. A person (A) discriminates against a disabled person (B) if –

 

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

 

  1. Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

 

In light of the fact the Respondent clearly new about the Claimant’s disability, there were several questions that remained for the Employment Appeal Tribunal to decide:

 

  1. Was the Claimant treated unfavourably?
  2. Was this treatment because of ‘something’ arising in consequence of the Claimant’s disability?
  3. Was the treatment a proportionate means of achieving a legitimate aim? 

 

 

Was the Claimant treated unfavourably?

 

The Tribunal had no problem in answering this question; the fact the Claimant had been dismissed from his position was sufficient to constitute ‘unfavourable’ treatment.

 

Was this treatment because of ‘something’ arising in consequence of the Claimant’s disability?

 

Again, the Tribunal considered there was a clear action which pointed towards the Claimant’s unfavourable treatment of being dismissed; namely the showing of an 18-rated film to a class of 15-16 year olds. The more difficult question was whether the ‘something’, the screening of the film, was in consequence of his disability.

 

Turning to the case of Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] IRC 305 (Para 28) EAT, the Tribunal commented that:

 

“The words “arising in consequence of” may give some scope for a wider causal connection than the words “because of”, though it is likely that the difference, if any, will in most cases be small; the statute seeks to know what the consequence, the result, the outcome is of the disability and what the disability has led to.”

 

In the instant case, it was clear to the Tribunal that the “something” had arisen as a consequence of the Claimant’s disability – his impaired mental state. It was accepted the Claimant’s impaired mental state could give rise to errors of judgment such as the decision to show a class of 15 and 16 year olds a film with an 18-age certificate.

 

Was the treatment a proportionate means of achieving a legitimate aim? 

 

The Tribunal considered the Respondent’s justification for dismissing the Claimant from his position, including its legitimate aims of safeguarding children and maintaining disciplinary standards. In spite of this, and in the light of the objective medical evidence before it, (evidence that revealed the Claimant had been subject to stress throughout the relevant period, and which clouded his judgment), the Respondent had failed to prove the necessary objective justification. The Employment Appeal Tribunal agreed with this approach, noting that due consideration had been had to the working practices and business considerations of the employer in arriving at that conclusion in line with the approach set out in the case of Hardy & Hansons plc v Lax [2005] ICR 1565 CA.

 

The Tribunal found the Respondent failed to make reasonable adjustments for the needs of a teacher with cystic fibrosis and that it was responsible for committing serious and substantial acts of discrimination. It is reported that the Claimant was awarded £180,000 in compensation and an additional award, to reflect the loss of his pension, which could see the final amount reach more than £500,000.[2]

 

Reasonable adjustments

 

It is important to think about which provision, criterion or practice of working is causing disadvantage, as this will affect the adjustment the employer has to make. Common adjustments that may help to get around issues of workload, targets, responsibilities or duties and which may lead to stress related conditions might include:

 

  • allocating duties to another;
  • transferring to another job;
  • taking extra breaks during the day; or
  • allowing employees to take time off work or disability leave if they need treatment or rehabilitation training.[3]