A teacher showed an 18-rated film to a class (younger than 18). The school dismissed him for misconduct. The teacher’s error of judgment was due to stress which largely arose from his disability, cystic fibrosis. The school knew of the cystic fibrosis, but not that it was a cause of his showing the film.
The Court of Appeal held the school was liable for discrimination arising from disability (s.15 EqA). It said s.15 can apply even if the employer etc did not know of the causal link between the disability and the reason for the unfavourable treatment – provided the employer etc knew or could reasonably be expected to know of the disability. The court said if the employer knows there is a disability “he would be wise to look into the matter more carefully before taking unfavourable action”.
Court of Appeal, 2018. Full judgment www.bailii.org/ew/cases/EWCA/Civ/2018/1105.htm
The claimant was a teacher in a school. The school knew he had cystic fybrosis. He had complained of having too much to do, and his condition required a time-consuming exercise regime.
He showed an 18-rated film to a class (younger than 18), and the school dismissed him for misconduct.
From evidence which had not been available to the school, the employment tribunal decided that the teacher’s error of judgment in showing the film was due to stress, which largely arose from his disability.
The tribunal decided he had therefore been dismissed because of something (ie showing the film) arising from his disability. The tribunal held the dismissal was not justified, so the school was in breach of s.15 Equality Act 2010.
Held: the Court of Appeal upheld the tribunal’s decision. It did not matter that the school was unaware of the causal link between the disability and the showing of the film.
No need for knowledge of causal link with disability
The Court of Appeal held that s.15 EqA can apply even if the employer etc did not know of the causal link between the disability and the reason for unfavourable treatment, provided the employer etc knew or could reasonably be expected to know of the disability. In this case the employer knew of the disability, so it did not matter that the employer was unaware of the causal link between the disability and the showing of the film.
There are examples of how this case may apply – including on stammering – and discussion of whether ignorance of the causal link could be relevant to the justification defence, at Knowledge of causal link with disability under s.15 EqA.
Interpreting the words of s.15
There is a breach of s.15 EqA (discrimination arising from disability) if an employer (or service provider etc) treats a disabled worker etc unfavourably because of something arising in consequence of the person’s disability, unless the employer etc shows either (a) that the treatment was a proportionate means of achieving a legitimate aim (justification) or (b) that the employer etc did not know, and could not reasonably have been expected to know, that the person had the disability. In this case the dismissal was the unfavourable treatment, and the “something” was showing of the film, which the tribunal said arose in consequence of his cystic fibrosis.
The Court of Appeal said that there are two distinct causative issues. Firstly was the unfavourable treatment because of the “something”? This involved an examination of the state of mind of the employer etc.
The second causative issue was whether that “something” arose in consequence of the claimant’s disability. The court said this is an objective matter. One cannot spell out of s.15 a further requirement that the employer etc must be shown to have been aware that the “something” arose in consequence of the disability. The court said there were a number of reasons for this.
First and foremost, said the Court of Appeal, the employer’s argument (that it needed to know of the causal link) was not compatible with the terms of s.15, read as a whole. Indeed the specific defence in s.15(2) if the employer etc shows it did not know of the disability would be redundant if liability arose only where the employer knew of the causal link with the disability.
The court said there is no ambiguity in s.15, but if there were then this interpretation was supported by legislative history and explanatory notes, and by the Employment Code of Practice.
It said the legislative history and explanatory notes indicate that s.15 was intended to restore protection for disabled people after protection was limited by the 2008 House of Lords decision in Lewisham London Borough Council v Malcolm (below My comments>S.15 restores the balance after Malcolm). The Explanatory notes indicated that Parliament intended to reverse the practical effect of the decision in Malcolm, as regards the former requirement that the defendant should be aware that the matter which caused him to act unfavourably towards the claimant arose in consequence of the claimant’s disability. The court also cited a speech-related example in the Explanatory notes:
The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability.
Equality Act Explanatory notes (legislation.gov.uk), paragraph 70.
The Court of Appeal said that this example:
“…indicates an intention that liability can be established under subsection 15(1) even though the defendant does not know that the “something” (in that case, the slurred speech) arose from the claimant’s disability. The example indicates that the relevant defence would be under subsection 15(2) [ie not knowing of the disability], if the landlord is able to avail himself of it.”
The Court of Appeal concluded:
It is clear that, as stated in the explanatory notes, section 15 EqA establishes a particular balance between a person suffering from a disability and a defendant. 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 more carefully before taking unfavourable action. The defendant will also have a defence if he is able to justify the unfavourable treatment under subsection 15(1)(b).
The majority of the Court of Appeal drew support too from the Employment Code of Practice (below). The court also noted and took comfort from the fact that “a long line of experienced judges in the EAT” had come to the same conclusion.
Arden LJ made some points in a separate judgment. She agreed with the majority judgment except on the use of the Code of Practice (below) to support the decision. She said that the specific defence given to the employer etc in s.15(2) if it did not know of the disability is inconsistent with any suggestion that lack of knowledge of the consequences of the disability is a defence. She added:
I can also well understand that Parliament could have taken the view that if lack of knowledge of the consequences [of the disability] were a defence, that could well in practice undermine the wide protection already given by section 15(1) EqA.
Code of Practice as an aid to interpreting the Equality Act
The Court of Appeal also made comments on how far Codes of Practice can be used in interpreting the Equality Act. See Legal effect of statutory guidance and codes>Codes of Practice on Employment and Services.
The Court of Appeal held the employment tribunal was entitled to decide that the employer had not shown the dismissal to be a proportionate means of achieving a legitimate aim (justification defence).
Justification: tribunal entitled to consider medical evidence not available to the employer
The employer argued before the Employment Appeal Tribunal (bailii.org) that the tribunal’s erroneous approach to justification was betrayed by its focus on medical evidence before it but not the employer at the relevant time (para 43). However the EAT held the tribunal was entitled to take into account medical evidence that had not been before the employer. The employer’s lawyer had fairly conceded in oral submission, applying an objective test to the question of justification – as the tribunal was required to do – it was hard to criticise the tribunal for failing to reach the same subjective conclusion as the employer (para 44 of EAT decision).
The Court of Appeal did not specifically mention this issue of taking into account medical evidence that was not before the employer. But it held that the tribunal and EAT had made a lawful assessment of the position in relation to the justification defence. The test under s.15 was an objective one, according to which the tribunal must make its own assessment. (para 54-58).
Justification: Different from unfair dismissal
The Court of Appeal held the tribunal was entitled to find the dismissal was not justified despite the tribunal’s rejection of the employee’s claim for unfair dismissal. The tests were different:
“…the test in relation to unfair dismissal proceeds by reference to whether dismissal was within the range of reasonable responses available to an employer, thereby allowing a significant latitude of judgment for the employer itself. 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 employer pointed to statements by the Underhill LJ in the Court of Appeal in O’Brien v Bolton St. Catherine’s Academy (bailii.org), at -. However the Court of Appeal in Grosset said that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same. The court said “No doubt in some fact situations they may have similar effect, as Underhill LJ was prepared to accept in O’Brien. But generally the tests are plainly distinct, as emphasised in Homer.”
Among other things the tribunal had rightly made its own assessment, on the evidence it had heard, whether the claimant’s remorse and acceptance that he had acted wrongly in showing the film were genuine. It had heard relevant evidence on this and was well-placed to make its own judgment about it. It was not obliged to proceed on the basis of the employer’s subjective perception that the claimant’s remorse was not sincere (para 58).
Justification: Failure to make reasonable adjustments
A particularly strong factor in the tribunal rejecting the justification defence in Grosset was that if the school had put in place reasonable adjustments by reducing the work pressure on the claimant, he would not have been subjected to the same level of stress. The tribunal explained in a later judgment on remedies that if such reasonable adjustments been made, it would have been “unlikely in the extreme” that the incident of the film would have occurred.
Examples, and justification defence
At Knowledge of causal link with disability under s.15 EqA there are:
- examples of how this case may apply, including on stammering, and
- discussion of whether ignorance of the causal link could be relevant to the justification defence.
S.15 restores the balance after Malcolm
The Grosset case is a welcome confirmation by a superior appeal court that s.15 EqA was intended to, and does, restore protection for disabled people after the 2008 House of Lords decision in Lewisham London Borough Council v Malcolm meant the DDA no longer provided the degree of protection from disability-related discrimination that was intended. The Court of Appeal said in Grosset:
Section 15 EqA was a new provision of discrimination law introduced for the first time in the Equality Act 2010, to restore the protection for disabled people beyond the more limited view of pre-existing discrimination law in section 5 of the Disability Discrimination Act 1995 which had eventually been adopted by the House of Lords in Lewisham London Borough Council v Malcolm.
The Court of Appeal also cited in support of its decision the EqA Explanatory notes which say:
“…The Disability Discrimination Act 1995 provided protection from disability-related discrimination but, following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm…, those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. This section is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.”
Equality Act Explanatory notes (legislation.gov.uk), paragraph 70.
Arden LJ, who sat in the Court of Appeal in the Malcolm case as well as in the Grosset case, saw the present case as an important landmark in the development of disability discrimination law. She said:
As Sales LJ points out, there is now a consistent series of cases in the EAT which give the same meaning to section 15 EqA as this Court holds in this judgment. However, this is the first time that this Court has had to consider its meaning of section 15(1) EqA, and accordingly this fdecision is another important landmark in the development of disability discrimination. It remains to hope that, with the detailed and definitive interpretation of the earlier legislation by the House of Lords and the intervention of Parliament, the law can now be viewed as more settled.