Facts
A teacher was dismissed for inappropriate behaviour with a former pupil. The tribunal upheld the teacher’s claim that this was discrimination arising from disability within s.15 EqA. The teacher’s behaviour had been materially affected by hypomania. The dismissal was not objectively justified because there had been no attempt to assess the risk of repetition of the behaviour.
[2013] EqLR 429, Employment Tribunal.
A teacher took a 16-year-old female former pupil to a concert, with the agreement of her parents. He was to return her home about 11.30pm. They did not come back until 3am, and she was intoxicated. The teacher was dismissed without notice, for gross misconduct.
The teacher argued that he had undiagnosed bipolar affective disorder, and a drug he had been given made him more susceptible to manic episodes (hypomania). Individuals with hypomania might have impaired judgment, and be more likely to behave inappropriately. He said he could function as a teacher with the correct drugs.
He claimed unfair dismissal, disability discrimination, and breach of contract because no notice was given.
Held by Employment Tribunal: there was discrimination arising from disability, contrary to s.15 Equality Act 2010.
Did the claimant’s conduct arise from disability?
To fall within s.15, the dismissal had to be “because of something arising in consequence of” the claimant’s disability.
The tribunal asked itself “Did the claimant’s behaviour for which he was dismissed arise, on the balance of probabilities, in a material or significant way, from his disability?”
The tribunal found that when the claimant took his former pupil out to the concert, he was acting in a way materially affected by hypomania, on a balance of probablities. In fact the tribunal considered his disability was the predominant reason for his behaviour. Accordingly, his inappropriate conduct arose in consequence of the disability.
Objective justification defence
The second issue was whether the school could show that the dismissal was objectively justified, namely that it was a proportionate means of achieving a legitimate aim.
The tribunal found the school had acted in pursuance of the legitimate aim of safeguarding children and young people. However, the dismissal was not a proportionate means of acheiving this aim. It was accepted that the claimant had behaved inappropriately. However, there had been no attempt to assess the risk of repetition of the behaviour, now the condition had been diagnosed and the claimant was receiving the correct medication.
The tribunal also considered whether the dismissal was justified to protect the school’s reputation. The tribunal accepted with some hesitation that this was a legitimate aim. However it held that dismissing the claimant for behaviour materially affected by his disability was not proportionate to address any perceived effect to reputation.
The tribunal also upheld the claims for unfair dismissal and breach of contract.
