The Court of Appeal in Grosset held that under s.15 Equality Act, the employer or service provider etc does not need to know of the causal link between the disability (eg stammer) and the reason for the unfavourable treatment. However the employer etc has a defence if it shows it did not know, and could not reasonably have been expected to know, of the disability itself.
Summary
- On a claim for discrimination arising from disability under s.15 EqA, the Court of Appeal has held that the employer or service provider etc does not need to know of the causal link with the disability.
- Whilst the employer etc need not know of the causal link, it has a defence if it shows it did not know, and could not reasonably have been expected to know, of the disability itself: see separate page Knowledge of disability.
- For example, in the leading case of Grosset (below), the employer knew of the claimant’s disability. It dismissed him for misconduct which, unknown to the employer, arose in consequence of this disability. The claim under s.15 succeeded.
- Therefore if an employer – or a university or whoever – knows or should know that a person (worker, student etc) has a disability, it is wise for it to look into the effects of the disability given that ignorance is not a defence. In Grosset the court said that an employer who knows there is a disability “would be wise to look into the matter more carefully before taking unfavourable action”.
- There are examples below of how this could relate to stammering and speech.
- It is unclear how far ignorance of the causal link (perhaps having taken all reasonable steps) may help an employer or service provider etc show that its actions were justified (below) and so not unlawful.
S.15 and the principle in Grosset
There is a breach of s.15 EqA (discrimination arising from disability) if an employer or service provider etc:
- treats a disabled worker or customer etc unfavourably because of something arising in consequence of the person’s disability,
- unless the employer etc shows either that
- the treatment was a proportionate means of achieving a legitimate aim (justification), or
- the employer etc did not know, and could not reasonably have been expected to know, that the person had the disability.
What if the employer or service provider etc did not know of the link with the disability? More precisely, what if they did not know that the reason for the unfavourable treatment arose “in consequence of” the disability? The Court of Appeal held in City of York Council v Grosset (below) that s.15 can still apply. The employer or service provider etc need not know of the causal link between the disability (eg stammer) and the reason for the unfavourable treatment.
However the employer etc has a defence if it shows it did not know, and could not reasonably have been expected to know, of the disability itself. For this defence see Knowledge of disability (separate page).
Example: An employee is dismissed for underperformance or for misconduct, and (unknown to the employer) that had a causal link with the disability. The employer can still be liable under s.15 if the employer knew or should have known of the disability.
As to whether the employer’s lack of knowledge is relevant to the justification defence, see below Justification defence: the new battleground?
Cases
City of York Council v Grosset, Court of Appeal, 2018
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”.
Pnaiser v NHS England (bailii.org), EAT, 2016
The employer withdrew a job offer following a conversation with a previous line manager who had given a reference. The previous line manager mentioned sickness absence (which in fact was due to disability). Later in the conversation she said she would not employ the claimant in the proposed role. The tribunal held the new employer had constructive knowledge of the claimant’s disability (ie they should have known of it).The EAT said the previous line manager’s comment about the claimant being unsuitable for the role was at least partly because of the claimant’s significant absences, which were due to the disability. This comment (which was a reason the new employer withdrew her job offer) was therefore something arising in consequence of her disability under s.15. It did not matter that the new employer did now know the comment was connected with her disability. The EAT said this involved no unfairness on the facts of the case. The new employer could have asked the reason for the unsuitability comment. It could also have advanced a justification argument but at this stage it was too late.
Examples on stammering and speech
Example: At a job interview, an applicant who stammers does things such as losing eye contact, using a lot of “filler” words such as “you see”, and limiting his answers. These are a factor in the employer rejecting him for the job. If these things were a consequence of the stammer, it seems s.15 EqA can apply even if the employer did not know they were caused by the stammer.
However the employer would have a defence if it shows it did not know the job applicant had the disability and could not reasonably have been expected to know of it (though the stammer may have been evident from disfluencies, or the job applicant may have told them he has a stammer). The employer would also have a defence if it shows the rejection was a proportionate means of achieving a legitimate aim (justification).
Example: A 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.
This is taken from an example in paragraph 70 of the EqA Explanatory notes (legislation.gov.uk). The Court of Appeal in Grosset specifically considered this example, and said the Explanatory notes indicate s.15 can apply even though the licensee does not know the slurred speech arose from the claimant’s disability. However there would be a defence if the licensee could show she did not know, and could not reasonably have been expected to know, that the customer was disabled.
For a similar example of a person who stammers being refused service for slurred speech, see Being mistaken for drunk.
As to whether the lack of knowledge of the employer etc is relevant to the justification defence, see below Justification defence: the new battleground?
Justification defence: the new battleground?
Particularly since the Court of Appeal’s clear decision in Grosset in 2018, this interpretation of s.15 now seems to be well settled (as much as anything can be). The new “battleground” may be how far employers and others can use the justification defence to escape liability if they did not know of the causal link with the disability, at least where it would seem unfair to make them liable.
In Grosset an important factor in holding that the justification defence did not apply was that the claimant would probably never have shown the film if the employer had made the reasonable adjustments it should have made to reduce his stress – so one might say there was no unfairness. Again the EAT in Pnaiser commented there was no unfairness on the facts.
But what if the former line manager in Pnaiser had explained (untruthfully) to the new employer that her comment about unsuitability related to the claimant’s performance in the job, not sickness absence? Generally, what if an employer had done all it reasonably could to make itself aware of relevant facts, and had made any reasonable adjustments? Or what if it had failed to make reasonable adjustments where it was not liable for that failure as such (under s.20) because it did not know and could not reasonably be expected to know of the relevant disadvantage? One can see a tribunal being under pressure to allow the justification defence.
However the Grosset decision in relation to the justification defence offers little consolation for employers. The EAT in that case (whose approach was approved by the Court of Appeal) specifically held that the employment tribunal in considering justification was entitled to take into account medical evidence that was not before the employer: City of York Council v Grosset>Justification: tribunal entitled to consider medical evidence not available to the employer. Justification was an objective matter to be decided by the tribunal.
Also allowing a defence for (even reasonable) ignorance on the part of the employer may be more difficult in the light of DWP v Boyers, 2020, where the EAT said that in justification the primary focus is on the outcome, rather than on the actions and thought processes of managers: Objective justification defence>Outcome vs procedure.
Cases so far on the relationship of the reasonable adjustment duty (s.20 EqA, which has a specific defence for not knowing of the disadvantage) with justification under s.15 are not really helpful to employers here in that the cases stress that the two provisions are separate: Objective justification defence>Relevance of reasonable adjustments.
However we will have to wait for further cases to clarify the justification defence in this context.
