Direct discrimination because of disability is a relatively easy concept to grasp and visualise in one’s mind. Discrimination arising from disability less so, especially when the alleged causal link to the disability is further up the causative chain. If a disabled person is off work frequently on sick leave due to their disability, is subsequently dismissed for their poor sickness record and the days taken into consideration are those related to those taken due to their disability we can see how a claim could be framed as discrimination arising from disability. A harder concept to grasp is where an employee used offensive language at work because they were unhappy with a decision taken by their employer that impacted on their ability to attend a function arranged by their employer due to their disability. In this case it was found that had it not been for the arrangement made by the employer that impacted unfavourably on the disabled employee he would have had no need to use the offensive language. It is not that your team is playing that caused you to curse, for which you were cautioned, but that it adopted the wrong tactic, played badly and lost. But, yet, there is a causal link between the match being played and your cursing!
In the Court of Appeal case of City of York Councilv Grosset  a teacher suffered from cystic fibrosis and deemed disabled under the Equality Act 2010. As a consequence of changes in performance standards for schools his workload increased. Subsequently, he wrongly showed some 15 and 16 year old students the 18 rated horror film, Halloween, and was dismissed for gross misconduct. He took his employer to the employment tribunal, complaining of, amongst other things (a subject to which I shall return in another article), discrimination arising from his disability. During the disciplinary proceedings he accepted that he had done wrong and that it was an error of judgment arising from his high stress levels in consequence of his disability. The employer did not accept that the showing of the film had been a result of an error of judgment brought on by stress. Therefore, importantly, they had denied that there was a causal link between his disability and the showing of the film for which he was dismissed.
The tribunal found that he had been dismissed because he showed the film, which arose in consequence of his disability, and that his employer could not show that the dismissal was a proportionate means of achieving the legitimate aim of protecting and safeguarding children. In consequence, the tribunal found that his employer discriminated against him arising from his disability of cystic fibrosis. It found that his dismissal was plainly an act of unfavourable treatment. It considered that it was more likely than not that he had made an error of judgment in selecting the film as a result of the stress he was under. Showing the film was not an error he would otherwise have made. In large part, that stress arose from his disability.
The employer appealed unsuccessfully both to the Employment Appeal Tribunal and the Court of Appeal. It was argued that the tribunal erred because the employer had no knowledge that the disability was causative of the showing of the film. This argument, however, was rejected. Knowledge of the link was unnecessary. All that was required was knowledge (actually or constructive) of the employee’s disability, not its effect.
The lesson to take away from this case is if an employee has a disability and acts in a way that calls into question their conduct/performance, the employer needs to be extra cautionary in subjecting that person to disciplinary proceedings. They might well do better to investigate the cause of the behaviour rather than focus solely on the behaviour itself.
by Ryan Clement @ryanwclement