Disability discrimination and the employer’s knowledge

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An employer cannot rely on lack of knowledge of a link between an employee’s misconduct and the disability.

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In a recent case the courts looked into discrimination arising out of disability and specifically into whether the employer must be aware that the act of its employee, which led to unfavourable treatment, was linked to the employee’s disability.

The Employment Tribunal answered in the negative: for the discrimination claim to stand, this employer’s knowledge of the link to disability is not required. On appeal, the Employment Appeal Tribunal and the Court of Appeal both agreed.

The claim was brought by a school teacher with cystic fibrosis. This is a chronic condition and amounted to disability. The school initially introduced some reasonable adjustment to help the teacher cope with his workload. Then a new syllabus was introduced, which significantly increased the workload for the teacher. In amending the syllabus no account was taken of the reasonable adjustments or of the teacher’s disability – the school argued for the simple reason that the decision maker who introduced the new syllabus was not aware. The teacher complained but no effective steps were taken to address his complaint. His health deteriorated significantly. Then the teacher showed an 18-rated film to his small class of vulnerable 15-16 year olds.  The school considered this as gross misconduct and the teacher was summarily dismissed. Importantly, the disciplinary panel did not have the records of the previous reasonable adjustments or of the teacher’s complaint.

The teacher accepted that showing of the film was utterly inappropriate. He then argued that he had to cope with the increased work load, of which he previously complained, which, in view of his ill health and disability, caused the error of his judgement. The school declined to accept this argument as a valid excuse for his misconduct. A claim to the Employment Tribunal followed: the teacher claimed his dismissal was unfair and that he suffered discrimination.

The Employment Tribunal found that the dismissal was within the band of reasonable responses and therefore fair. The school did not score so well in regard to discrimination claims. The Tribunal, rather unsurprisingly, found the school failed to make reasonable adjustments. Then, having accepted that the school in dismissing the teacher did not know that the act of gross misconduct was linked to his disability, found that the act of dismissal was discriminatory. The finding in respect of discrimination arising out of disability is an important one: upheld on two appeals, it clarifies the employer cannot rely on its lack of knowledge of the link between the employee’s misconduct and the disability.

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Kiril MoskovchukTrainee SolicitorRead More by this author

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