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Misconduct connected to disability

Can an employer be liable for disability discrimination if they dismiss an employee for misconduct or poor performance that they are unaware is connected to a disability?

Yes, according to a decision of the Court of Appeal which upheld an employment tribunal’s decision that an employer discriminated against its employee by dismissing him for misconduct that was a side effect of the stress caused by the employee’s cystic fibrosis.

Background

In that case, the Claimant was a teacher who suffered from cystic fibrosis which was made worse by stress. The school knew about his condition and had made adjustments to accommodate him. The school put in place new systems aimed at improving outcomes for pupils. The new systems and extra scrutiny caused a substantial amount of extra work. The Claimant wrote to the school to explain that his increased workload was causing him stress.

At about the same time, the school received information that the Claimant had shown the 18-rated horror film ‘Halloween’ to a class of 15 year-olds without obtaining parental consent, or seeking the approval of the head teacher.

At his disciplinary hearing, the Claimant accepted that showing the film had been inappropriate and regrettable but said that it was an error of judgement caused by the stress he was under, and that his cystic fibrosis had contributed to the stress.

The disciplinary panel did not accept that the incident was the result of an error of judgement caused by stress. It also found that the Claimant had not properly recognised the seriousness of what he had done. The Claimant was dismissed and his appeal against dismissal was rejected.

Decision

The Employment Tribunal (“ET”) upheld the Claimant’s claim for discrimination arising from disability. It accepted that the Claimant’s error of judgement in his film selection of ‘Halloween’ was a “side effect of the stress caused, in significant part, by his cystic fibrosis”

The ET also dismissed the school’s argument that the Claimant’s dismissal was justified by the need to safeguard children. The tribunal accepted that the need to safeguard children was a legitimate purpose but ruled that the decision to dismiss the Claimant was not proportionate, and that, given the Claimant’s unblemished disciplinary and performance record, a final written warning would have been appropriate in the circumstances.

Appeal

The school appealed against the ruling of discrimination based, in part, on an argument that it did not know that the misconduct was linked to the Claimant’s disability.

The EAT upheld the tribunal’s decision, as did the Court of Appeal.

Both ruled that knowledge of a link between the Claimant’s misconduct and his disability was not relevant to a claim for discrimination arising from disability. Instead, as the Court of Appeal explained, such claims require an investigation of two distinct issues: (i) did the employer treat an employee unfavourably because of “something”? and (ii) did that “something” arise in consequence of the employee’s disability.  There is no requirement that the employer must have been aware when subjecting the employee to the unfavourable treatment in question that the relevant “something” arose in consequence of the employee’s disability.

In the present case, the test was therefore satisfied on the basis that the Claimant had shown an inappropriate film to his pupils as a result of an error of judgement brought on by the stress he was experiencing, which was in turn a consequence of his disability.

Comment

Poor mental health can be a factor in employees’ performance or misconduct. As this case shows, dismissal for either can amount to discrimination arising from disability if the employer is aware, or ought reasonably to be aware, of the employee’s disability but the employer does not have to be aware that the performance or misconduct is connected to the disability.

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