employment law

Treating disabled employees with care and respect

This edition we take a look at the recent case of City of York Council v Grossett and what lessons can be taken from this should your business face a similar issue, there is also a brief reminder to businesses, just in case your heads are still buried in the sand, that the GDPR are now in force!

Considering disciplinary or performance management of a disabled employee - then take care!

City of York Council v Grossett is a timely reminder to employers when considering disciplinary action against a disabled employee. Getting this wrong could mean a significant financial penalty for your business.

In this case, the Court of Appeal decided that a teacher was discriminated on the grounds of his disability when he was dismissed for showing a horror film to vulnerable students.

The facts

Mr Grosset was a teacher who suffered a disability (cystic fibrosis). When he began employment at the school, the employer was aware of his condition and they made reasonable adjustments. When a new headteacher was appointed, he was not informed of Mr Grosset’s disability, or the reasonable adjustments that had been agreed. In addition, there was an increased workload which, Mr Grosset claimed, led to an increase in his levels of stress.

Mr Grosset raised his concerns with the school and he was referred to Occupational Health. While under this level of stress, Mr Grosset showed a small class of 15-16 years old an 18-rated horror film. Disciplinary proceedings were brought against Mr Grosset who was subsequently dismissed for gross misconduct. Mr Grosset brought a number of claims to the Employment Tribunal, including unfair dismissal and discrimination arising from his disability under Section 15 of the Equality Act 2010. Mr Grosset claimed that his actions were an error of judgement which was brought about by the stress that he was experiencing by the school’s failure to make adjustments to his role to accommodate his disability. Under Section 15, an employer will not be liable if they did not know or could not reasonably be expected to know that the

PAUL HUSBAND COMMERCIAL PHOTOGRAPHY

Websites – Corporate Events – Social Media Portraits Marketing Material – Product Launches – Press Releases CALL NOW for further information 07921 239 147/0161 366 9488 person had a disability.

The Courts’ decision

The Employment Tribunal rejected the unfair dismissal complaint but upheld the claim of discrimination arising from disability. It concluded that Mr Grosset’s actions were a result of the stress that he was experiencing. His dismissal was therefore an act of discrimination arising from his disability. The employer appealed, arguing that it was unaware of a link between Mr Grosset’s misconduct and the disability at the time of his dismissal.

The case reached the Court of Appeal who confirmed the Employment Tribunal decision. The Court of Appeal ruled that Section 15 continues to apply even if the employer was unaware that the disability was linked to the misconduct in questions.

What can my business learn from this case?

The case is a timely reminder of the importance of obtaining up to date occupational health reports in situations such as this. action in respect of a disciplinary or performance management it is always best to seek specialist advice.

Employers are reminded that any compensation awarded in a successful discrimination claim is uncapped!

GDPR - don’t forget about your employees!

Finally, we couldn’t end this article without mentioning the dreaded GDPR.

As we are all aware, the new regulations are now in force and businesses need to ensure that they are compliant. Without adding to the scaremongering, remember that if you have employees or use workers, then you will also be processing their personal data. Employers need set out in a privacy policy how they deal with personal data from recruitment, all the way through the employment cycle up to and including the termination of employment. Staff or external suppliers (such at any outsourced payroll) should be aware of your privacy policy and agree to abide by it. Remember that you as the employer will be responsible should any member of your staff commit a data breach in the course of their employment. If you need any help with updating or drafting of policies, do not hesitate to get in touch.

The courts have made it clear that it is not for the employer to conclude whether the disability has a causative effect on the misconduct or performance; this should be decided objectively by a medical professional. Additionally, the Court of Appeal commented that Mr Grosset’s act of misconduct (showing the film to the pupils) was unlikely to have happened if the school had made the adjustments that he had requested to reduce his stress levels.

If you are aware or suspect that an employee may suffer from a disability, before taking any

Chloë Leyland

Enhanced HR Solutions Ltd www.enhancedhr.co.uk