PLT Masthead 430

Comment and Analysis Masthead

Protection for disabled staff

School desks 146x219In a high-profile case where a teacher was dismissed for showing an 18 rated film to 15- and 16-year olds, the Court of Appeal has given guidance on the meaning of section 15(1) Equality Act 2010, write Ben Cooper QC and Angharad Davies.

The case of City of York Council v Grosset [2018] EWCA Civ 1105 has been described by Lady Justice Arden as “another important landmark in the development of disability discrimination”. The two issues that arose on this appeal were firstly, and perhaps most interestingly, the proper construction of section 15(1)(a) of the Equality Act 2010 (“EqA”) and secondly, the proper approach to determining whether a defence of justification has been made out under section 15(1)(b) of the EqA.

This gave the Court of Appeal the opportunity 11 years on from the ground-breaking decision by the House of Lords in Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399 to analyse the impact of section 15 EqA which is a relatively new provision of discrimination law. It was introduced for the first time in the Equality Act 2010, to restore the protection for disabled people beyond the more limited view of the old discrimination law in section 5 of the Disability Discrimination Act 1995 adopted by the House of Lords in Malcom.

Background

This case had at the heart of it the dismissal of the claimant for showing a group of 15- and 16 – year old pupils the 18 rated film Halloween. The claimant had been employed by City of York Council as the head of English at Joseph Rowntree School (“the School”), a state secondary. He also suffered from cystic fibrosis (“CF”) a debilitating, inherited, life limiting condition. CF is, as the Court of Appeal accepted, a “serious disease” which required the claimant to adopt time-consuming exercise regime to keep under it control. There was no dispute that the claimant was disabled for the purposes of the EqA nor that reasonable adjustments had been successfully in place for him since he started at the School.

Against this backdrop, there was a change of head teacher at the start of academic year in September 2013. This is when difficulties for the claimant began to arise. The problems were twofold, firstly, the incoming headteacher was not made aware of the claimant’s disability nor the adjustments that were in place that had accommodated it. Secondly, new criteria had been introduced by which the performance of the English Department was to be measured. These new measures highlighted some problems with the department. Therefore, immediate steps were put in place by the School to attempt to overcome the department’s difficulties.

There were two significant measures introduced to the department, which led to a substantial increase in the Claimant’s workload. They were, firstly, the introduction of “Focus Fortnight” described by the headteacher as a “mini OFSTED inspection” and, secondly, a new IGCSE syllabus which entailed the pupils sitting entirely new public examinations in November. The heavy additional burden for the claimant caused by these measures meant he was struggling for the first time with his increased workload and stress. These pressures caused the claimant’s lung function to drop to an all-time low and meant he had to confront the prospect of a lung transplant.

On the final day of the IGCSE exams the claimant taught a “nurture group” of pupils immediately afterwards. It was the claimant’s intention to show a film to use as a vehicle to complete coursework about the construction of narrative. The film the claimant selected was Halloween, an 18 rated film. Thereafter, the claimant’s ill health became such that he had to take time off. He had been suffering stress for some time, and this was impacting upon his lung function.

Whilst he was absent, the headteacher covered one of the Claimant’s lessons with the “nurture” class, and became aware that Halloween had been shown. This prompted concern that an inappropriate film had been shown to vulnerable pupils. Subsequently, the claimant was suspended, subject to a disciplinary procedure and dismissed for gross misconduct.

Employment Tribunal’s Decision

The Employment Tribunal (“ET”), by a majority, dismissed the claimant’s claim that he had been unfairly dismissed. The majority held that it had been within the range of reasonable responses open to the disciplinary and appeal panels to reject the Claimant’s case that he had shown the film as a result of an error of judgment induced by the stress he was under, and also to conclude that his expressions of regret were not genuine.

However, the ET upheld claims under s20 and s21 of the EqA in relation to breaches of the School’s obligation to make reasonable adjustments in respect of the Claimant’s workload during the autumn of 2013, and also claims under s 15 EqA, including in relation to his dismissal.

This appeal focussed on the s 15 EqA complaint in relation to the dismissal, in respect of which the ET found that the claimant had shown the film as a result of an error of judgment in selecting Halloween due to the stress he was under; showing this film was not an error he would otherwise have made; and, in very large part, that stress arose from his disability. On that basis, the ET concluded that the claimant had been dismissed for a reason relating to his disability for the purposes of section 15(1)(a) EqA.  In reaching those conclusions, the ET had regard to medical evidence that had not been available to the internal disciplinary and appeal panels.

As to justification of the dismissal under section 15(1)(b) EqA, the ET found that the school had the legitimate aims of protecting children and ensuring that disciplinary standards are maintained, to which it attached significant weight.

However, the ET carried out its own objective assessment of the evidence and found (unlike the internal panels) that the claimant had been affected by disability-related stress and that his remorse was sincere, so that one could be confident that there was no real risk of any repetition of such error of judgment if the stress had been subject was removed. On that basis, the ET found that dismissal had been a disproportionate sanction and, at its highest, a formal written warning would have been sufficient. It also took into account that the acute stress which the claimant was under in November 2013 arose in part from failures by the respondent to put in place reasonable adjustments to moderate his workload, as required by sections 20 and 21 EqA. On this basis, the ET found that the dismissal of the claimant was not justified under section 15(1)(b) EqA. Accordingly, the ET concluded that the dismissal was an act of disability related discrimination contrary to section 15 EqA.

The Appeal

The correct approach under s15(1)(a)

The respondent sought to argue that the ET’s reasoning was not sufficient to satisfy  s.15(1)(a) EqA in that the unfavourable  treatment (in this case the dismissal) was imposed because the claimant showed pupils an inappropriate film.

The respondent argued that in order to satisfy s15(1)(a) EqA, it was not sufficient to show that the “something” which was the reason for the unfavourable treatment (i.e. showing the film) was, objectively, a consequence of the disability, but that an extra stage was required, namely that the claimant also had to show that the respondent itself knew and understood that the claimant’s behaviour in showing the film arose in consequence of his disability, and that this operated on the decision-maker’s mind as part of the reason for the treatment. Thus, since the internal panels had (reasonably) rejected the Claimant’s argument that he had shown the film as a result of a disability-related error of judgment, the respondent argued s15(1)(a) could not be satisfied.

In effect, the respondent’s arguments sought to reintroduce the effects of Malcolm in relation to s15 EqA.

The lead judgment in the Court of Appeal was given by Sales LJ (with whom Arden and Peter Jackson LJJ agreed, Arden LJ giving a concurring judgment). The Court robustly rejected this analysis and accepted the arguments put forward on behalf of the claimant. The Court held that the respondent’s interpretation was not only incompatible with the natural meaning of s15 EqA taken as a whole but also would make the “knowledge” defence provided at s 15(2) redundant.

The Court of Appeal has therefore confirmed that the proper construction of, section 15(1)(a) requires an investigation of two distinct causative issues (see para [36]):

  1. did A (the employer) treat B (the employee) unfavourably because of an (identified) “something”? and
  2. did that “something” arise in consequence of B’s (the employee’s) disability.

Issue (i) requires an examination of the decision-maker’s state of mind and the familiar test in Nagarajan v London Regional Transport [1999] IRLR 572, HL, applies – i.e. the “something” must have operated on the mind of the decision-maker to a significant extent (see para [53]). In this case, it was clear that the showing of the film was the “something” for which the claimant was dismissed and therefore issue (i) did not require more detailed examination. This is to be contrasted with cases where the key factual question concerns the reason(s) for the treatment – e.g. Charlesworth v Dransfields Engineering Services Ltd, UKEAT/0197/16/JOJ, where the claimant’s sickness absence brought a redundancy situation into sharper focus, but the reason for dismissal was ultimately redundancy (which was not a consequence of the disability) and not sickness absence (see para [37]).

By contrast, the test in relation to issue (ii) is objective, but does not require an immediate causative link (see paras [38] & [50]). In the instant case, the test was therefore satisfied on the basis that the claimant had shown the film as a result of an error of judgment brought on by the stress he was experiencing, which was in turn a consequence of his disability. It is not necessary for the respondent to know of that link: the employer will have a defence under s15(2) if it can show that it was (reasonably) not aware of the disability at all, or under s15(1)(b) if it can show that the treatment was justified, but it is not necessary for the employer to be aware of the specific causal connection between the disability and the “something”. As Sales LJ put it (para [47]):

“The risk of unfavourable treatment because of something that has arisen from the disability is cast onto the defendant rather than the claimant. If the defendant does not know that the claimant suffers from a disability, he has a defence. But if he does know that there is a disability, he would be wise to look into the matter carefully before taking any unfavourable action. The defendant will also have a defence if he is able to justify the unfavourable treatment under subsection 15(1)(b).”

This outcome might not be unexpected as the Court of Appeal was following an established line of judicial reasoning from experienced judges in the EAT, who have come to the same conclusion regarding the proper interpretation of subsection 15(1)(a), and from which the Court of Appeal drew further comfort  (see para [52]).[2]

Justification

Again, the Court of Appeal upheld the ET’s decision in relation to justification. It found that there was no inconsistency between the ET’s rejection of the claimant’s claim of unfair dismissal and its upholding of his claim under section 15 EqA in respect of his dismissal.  This is because the two tests are fundamentally different.

The test in relation to unfair dismissal depends on whether dismissal was within the range of reasonable responses available to an employer, which permits a significant latitude for an employer. By contrast, the test under section 15(1)(b) EqA is an objective one, according to which the ET must make its own assessment.

The respondent sought to rely on dicta of Underhill LJ in the recent case of O’Brien v Bolton St. Catherine’s Academy [2017] EWCA Civ 145; [2017] IRLR 547, at paras [51]-[55], where he had observed that a tribunal, having found that a dismissal for disability-related absence in that case was disproportionate for the purposes of of section 15(1)(b) EqA, was also entitled to conclude from this that it had been unfair as well. The respondent in the present case sought to argue that that this reasoning should apply in the opposite direction, so that because the ET had ruled against Mr Grosset’s unfair dismissal claim it should necessarily have concluded that there was no breach of section 15 EqA.

The Court of Appeal had little difficulty in rejecting this argument and upholding the ET’s decision, relying in part on the fact that underlying the ET’s conclusion that the dismissal was not proportionate was its assessment that, if the respondent had put in place reasonable adjustments as required, by reducing the work pressure on the claimant, he would not have been subjected to the same level of stress and therefore it would have been “unlikely in the extreme” that he would ever have shown the film.

In upholding the ET’s decision on justification, the Court of Appeal thus confirms that Underhill LJ’s remarks in O’Brien should not be understood as aligning the band of reasonable responses test in unfair dismissal and the proportionality test in discrimination claims for all purposes, only that in “some fact situations”, such as in O’Brien where the issue concerned the proportionality/ reasonableness of dismissal as a response to disability-related absence, the two tests may have similar effect. Fundamentally, however, the tests remain distinct and may lead to different results.

Conclusion

This case was a timely opportunity for the Court of Appeal to consider the progress that has been made in disability discrimination law. In fact, Arden LJ took the opportunity to give a concurring judgment to reflect on the changes since her leading judgment in the Court of Appeal in Lewisham LBC v Malcolm [2008] 1 AC 1399 almost exactly eleven years ago, before the decision of the the House of Lords in that case upset the balance of protection for disabled people under the Disability Discrimination Act 1995. The judgment of the Court of Appeal in Grosset now confirms that section 15 EqA has achieved its aim of restoring that balance.

This case does important work in ensuring that he discrimination landscape can be considered more settled ensuring and does that which section 15 EqA was intended to do, which is to draw the protection for the disabled person wider than under the Disability Discrimination Act 1995, as construed in Malcolm. When considering individual claimants, such as Mr Grosset, who are holding down meaningful employment whilst managing severely debilitating conditions, this must be a good thing.

Ben Cooper QC is a barrister at Old Square Chambers and Angharad Davies is a barrister at Dere Street Chambers. They represented the successful claimant in the case, instructed by Lynne Hardy of the National Education Union.

 

 

[1] Section 15 EqA provides:

“15 Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) 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.”

[2] See Land Registry v Houghton, HHJ Peter Clark, UKEAT/0149/14/BA, unrep., judgment of 12 February 2015, [19]; Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, [25]-[26],  [31] and [34] (Langstaff J); Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893, [30], [35] and [42] (Elisabeth Laing J); Private Medicine Intermediaries Ltd v Hodkinson , HHJ Eady QC, UKEAT/0134/15/LA, unrep., judgment of 15 January 2016, [26]; Pnaiser v NHS England [2016] ICR 170, [31] (Simler J). 

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