Discrimination arising from disability: beware the unknown

29 May, 2018

Last week the Court of Appeal determined that discrimination arising from disability can occur where the employer dismisses a disabled employee unaware of the fact that the misconduct arose from their disability.

The law

There is a two-stage test for considering whether discrimination arising from disability has occurred. Firstly, did the claimant’s disability cause, or have the consequence of, or result in “something”? And secondly, did the employer treat the claimant unfavourably because of that “something”? By way of example, discrimination arising from disability would occur if an employee’s physical disability caused them to be late for work consistently and he or she was dismissed for being persistently late.

Discrimination arising from disability would not occur, however, if the employer shows that it did not know, and could not have been expected to know, that the employee had a disability.

However, what would happen if an employer dismisses an employee for misconduct, where the employer knows about an employee’s disability, but where the employer did not know the misconduct arose from the disability?

Decision

In this case a teacher – who suffered from cystic fibrosis which created extra workload and subsequent stress – had shown an 18-rated film to students and as a result was dismissed. The tribunal found that the teacher had shown the film due to the high levels of stress he was suffering, which had arisen from the effect of his disability due to increased work levels.

This case shows that the range of “consequences” of an employee’s disability can be very wide. It can include anything which is the result or outcome of a disability. Employers need to tread carefully when dismissing, or considering to dismiss, an employee who has a disability.