“Balancing exercise” critical in dismissal of disabled employee
In City of York v Grosset, in upholding an earlier Tribunal decision, the EAT has emphasised the importance of a proportionate response before disabled employees are dismissed.
Grosset was Head of English at a secondary school and disabled. He had been required to take on additional workload and experienced other pressures that he could not cope with, given his disability.
Having discovered that he had shown an 18-rated film to a class of vulnerable 15- and 16-year-olds, the School took disciplinary action. Grosset, by now on sick leave suffering from stress, accepted that his action had been inappropriate and regrettable, but argued he had been affected by stress, contributed to by his disability. He was summarily dismissed for gross misconduct.
A Tribunal found that Grosset’s dismissal amounted to discrimination because of ‘something’ arising in consequence of his disability under S.15 of the Equality Act 2010, which the employer had not justified. He was awarded £180,000.
The EAT rejected the employer’s appeal. It said that the Tribunal had applied case law correctly, firstly identifying the ‘something’ that caused the employer to treat Grosset unfavourably, in this case his misconduct by inappropriately showing the film. The Tribunal had then decided on an objective basis, given the evidence before it, including medical opinion, that this ‘something’ had arisen as a consequence of Grosset’s impaired mental state, contributed to by his disability.
Whilst accepting the employer’s legitimate aim of protecting children and ensuring disciplinary standards were maintained, the EAT carried out the “balancing exercise” required by reference to that aim. Given the seriousness of the error of judgement, dismissal might well have been proportionate, but the medical evidence demonstrated that Grosset was significantly impaired by stress.
The EAT therefore agreed that the Tribunal had reached the permissible conclusion that dismissal was not a proportionate response when the disadvantage to Grosset was put into the balance.