Employment law bulletin May 2018

Discrimination arising from a disability: Teacher who showed 18 rated film to 15 and 16 year olds is awarded £646,000 in compensation

In City of York Council v PJ Grosset the Court of Appeal upheld an Employment Tribunal’s finding that a teacher who was fired after screening an 18 rated horror film to 15 and 16 year olds suffered discrimination arising from a disability under s15 of the Equality Act 2010 (“EqA”).

Factual background

The Claimant suffers from cystic fibrosis. As such, it was accepted that he is a disabled person under the EqA. His condition was disclosed to his employer in 2011 when he started work and initially reasonable adjustments were made to accommodate the onerous exercise routine he had to undertake to manage his condition.

In 2013 though a new head teacher was appointed. The new head teacher was not briefed about the Claimant’s disability or about his previously agreed reasonable adjustments. Work levels increased under the new head and the Claimant was not able to dedicate enough time to his exercise routine. This in turn led him to become stressed.

At the end of 2013, without consent from the school or the childrens’ parents, the Claimant showed a class of 15 and 16 year olds the 18 rated horror film Halloween. He accepted that showing the film has been inappropriate and regrettable, but argued that his judgement had been affected by stress, contributed to by his disability and the school’s failure to make reasonable adjustments for it.

Issues

The CoA considered two principal issues:

1. the proper construction of s15(1)(a):

‘A treats B unfavourably because of something arising in consequence of B’s disability’ (with our emphasis in underlines); and

2. the proper approach to determining whether a defence of justification has been made out under s15(1)(b):

“…the treatment is a proportionate means of achieving a legitimate aim.”

Issue 1

The relevant “something” was the Claimant showing his class the horror film. It was held that s15 EqA did not require there to be an immediate causative link between the ‘something’ and the Claimant’s disability. It was enough for the disability to be linked to the stress and the stress in turn to be linked to the ‘something’. The Court of Appeal was satisfied that the error of judgement for which the Claimant was dismissed arose in “consequence of ” his disability.

Issue 2

It was held that there was no inconsistency between the ET’s rejection of the claimant’s claim of unfair dismissal and its upholding the claim under s15 EqA in respect for the dismissal. This is because the test for unfair dismissal is by reference to whether the dismissal was ‘within the range of reasonable responses’ but the test under s15(1)(b) EqA is an objective one.

A particularly strong factor underlying the ET’s conclusion that the dismissal was not proportionate (under s15(1)(b)) was its unchallenged assessment that, if the School had put in place reasonable adjustments he would not have been subjected to the same level of stress (and the incident would not have happened).

Conclusion

It was held that had reasonable adjustments been made, it would have been “unlikely in the extreme” that film screening incident would have occurred, and the Council’s appeal was therefore dismissed.

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