EAT Disability Discrimination – Section 15
DISABILITY DISCRIMINATION – Justification
UNFAIR DISMISSAL – Reasonableness of dismissal
Disability discrimination – unfavourable treatment because of something arising from the consequences of disability – justification – section 15 Equality Act 2010 (‘EqA’)
The Claimant – Head of English at a secondary comprehensive school operated by the Respondent and a disabled person by virtue of the fact that he suffered from cystic fibrosis (as the Respondent was aware) – had been required to take on additional workload and other pressures (including ‘Focus Fortnights’ introduced by the new Head Teacher), which he could not cope with given the difficulties arising from his disability and which thus amounted to unfavourable treatment because of something arising in consequence of his disability and in respect of which the Respondent had failed to comply with its duty to make reasonable adjustments. There was no appeal from those findings, but the ET had gone on to find that the Claimant’s subsequent dismissal had also amounted to discrimination for the purposes of section 15 EqA and it was that Judgment which was the subject of the Respondent’s appeal.
As was common ground, the reason for the Claimant’s dismissal was his misconduct in inappropriately showing an 18-rated film (Halloween) to a class of vulnerable 15- and 16-year-olds; that was the ‘something’ operating on the Respondent’s mind/significantly influencing its decision (IPC Media Ltd v Millar  IRLR 707 EAT / Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15). The ET then considered whether that misconduct had arisen as a consequence of the Claimant’s disability. On the material before it – which included medical evidence not available to the Respondent – it was satisfied it had: the Claimant’s error of judgement, and thus his misconduct in inappropriately showing the film, arose as a consequence of his disability. As dismissal was an unfavourable act, he had been treated unfavourably because of something arising in consequence of his disability. The ET went on to consider the Respondent’s defence of justification. Accepting it had legitimate aims in terms of safeguarding children and maintaining disciplinary standards, the Respondent had not demonstrated that dismissal was proportionate, so failed to prove objective justification.
Held: dismissing the appeal
Applying the guidance laid down by the EAT in Basildon and Thurrock NHS Foundation Trust v Weerasinghe  ICR 305, the definition of ‘the something’ under section 15 EqA gave rise to a question of causation: it had to be that which caused the employer to treat the employee unfavourably; it required the ET to look into the mind of the relevant decision taker and ask what was the factor (conscious or subconscious) that materially operated on his or her mind. Having thus defined ‘the something’ – in this case the Claimant’s misconduct in terms of the inappropriate showing of the film – the ET had to ask whether that something arose as a consequence of the Claimant’s disability. That – as the parties accepted – gave rise to a question to be answered by the ET on an objective basis: on the evidence before it, did the ‘something’ arise in consequence of the employee’s disability? In this case, the ET had found as a fact that the inappropriate showing of the film – the something – did arise as a consequence of the Claimant’s disability (his impaired mental state). The ET did not fail to appreciate the need to make a finding on causation; it did not spend a great deal of time on this issue, because it was not in dispute. As for the ET’s reliance on the medical evidence before it (not available to the Respondent itself, and for which the ET (majority) had not criticised it in relation to the unfair dismissal case) that was permissible given the objective nature of the exercise required.
On the question of justification, the approach again required an objective test, albeit one that had regard to the working practices and business considerations of the employer (Hardy and Hansons plc v Lax  ICR 1565 CA applied). The ET had taken care to define the Respondent’s legitimate aim – the protection of the children and ensuring disciplinary standards were maintained – and had then carried out the balancing exercise required of it by reference to that aim. The ET thus kept the Respondent’s ‘workplace practices and business considerations’ firmly at the centre of its reasoning. Doing so, it reached a different conclusion to the Respondent, permissibly taking into account medical evidence that had not been before it. The appeal was dismissed.
Unfair dismissal – separate consideration of disciplinary and grievance procedures – fairness of the decision to dismiss – section 98(4) Employment Rights Act 1996 (‘ERA’)
The ET had found that the reason for the Claimant’s dismissal was related to his misconduct in showing an inappropriate film to a class of vulnerable 15- and 16-year-olds. By a majority, it had further found the dismissal of the Claimant for that reason had been fair. The Claimant cross-appealed.
Held: dismissing the cross-appeal
Although accepting it was open to the ET to find that the dismissal breached section 15 EqA but was still fair for the purposes of section 98(4) ERA, the Claimant criticised the ET majority for failing to find that the Respondent’s decision to separate out the grievance process from the disciplinary procedure rendered the dismissal unfair. This was, however, a point with which the ET majority expressly engaged and concluded that the approach adopted did not fall outside the band of reasonable responses. The ET was best placed to make that judgment. In reality the cross-appeal was an attempt to re-run the arguments below. Whilst a different ET might – as the minority member of this ET had – reach a different conclusion to the majority, that conclusion was not perverse. The cross-appeal would also be dismissed.
Updated: 27 January 2022; Ref: scu.572668