France Telecom: lessons for UK employers following 'institutional harassment' ruling
Out-Law Analysis | 13 Jul 2018 | 12:46 pm | 7 min. read
In a recent run of decisions, the courts and tribunals have had to consider the extent of an employer's liability for disability discrimination where the employer did not fully know about an employee's disability, or its effects.
The decisions highlight the importance of carefully considering the extent to which employee behaviour or conduct is separable from or might have arisen out of a disability before deciding on a proportionate course of action. They also reinforce the importance to employers of obtaining and being guided by medical evidence where an employee may have a disability, rather than relying on the employee's own assessment of their abilities.
Disability and employer awareness
In May, the Court of Appeal considered the extent of an employer's liability for discrimination under section 15 of the Equality Act 2010 (EQA), where it was not aware that the behaviour which led it to treat an employee unfavourably arose from, or was a consequence of, the employee's disability. The case was the first time the Court of Appeal had looked at the correct interpretation of section 15.
The court ruled that City of York Council discriminated against Mr PJ Grosset, who had been head of English at a secondary comprehensive school, when it dismissed him for gross misconduct which arose in consequence of his disability. This was the case despite the fact that the tribunal had access to medical evidence beyond that available to Grosset's employer when reaching its decision to dismiss him.
Grosset has cystic fibrosis, which he disclosed to the school in 2011 when he started working there. Various reasonable adjustments were agreed to accommodate his disability. In 2013, changes were made to the way in which the school's performance was assessed, coinciding with the appointment of a new head teacher. Grosset was required to carry out additional duties which imposed a significant additional burden on him.
Grosset wrote to the head teacher to complain about what he considered to be unreasonable deadlines, workload and pressure. He referred to his cystic fibrosis and his need to be able to manage his health issues as to why he was raising concerns. While suffering from a high level of stress, he showed the 18-rated horror film Halloween to a class of 15-year-olds without obtaining approval from the school or the pupils' parents. When the school learned about this, it brought disciplinary charges against Grosset, which ultimately led to his summary dismissal for gross misconduct.
The Court of Appeal, in its judgment, found that Grosset had confirmed that, for a finding of unlawful discrimination to be made under section 15 of the EQA, the employer must have treated the employee unfavourably because of something arising from the employee's disability. There was a causal link between Grosset's disability and his actions in showing the film. Importantly, however, the employer does not have to be aware that the 'something' arises from the disability. A tribunal must assess objectively whether the 'something' arose from the disability, and may consider evidence which was not available to the employer in doing so: e.g., in this case, medical evidence linking the stress that led to Grosset's error of judgement in showing the film to his disability.
Section 15 allows an employer to justify unfavourable treatment if it can be shown to be a proportionate means of achieving a legitimate aim. The court confirmed that this was an objective question, unlike the fairness of dismissal, with the effect that a dismissal can be 'fair' under section 98 of the Employment Rights Act 1996 (ERA) while at the same time not justified under section 15 of the EQA. The court found that this was the case here. While the school had identified legitimate aims of protecting children and ensuring that disciplinary standards were maintained, the step of dismissal was disproportionate in the circumstances. On the other hand, in relation to his claim for unfair dismissal, the findings made by the school and the sanction imposed fell within the range of reasonable responses open to it as an employer which provides for a wider degree of latitude and so this claim did not succeed.
Employers should therefore consider carefully whether disciplinary action might constitute a proportionate means of achieving a legitimate aim if there is a possibility than an employee's misconduct is something arising from their disability. They should obtain medical advice to assist them to ensure that they are making a fully informed decision. The adequacy of any reasonable adjustments put in place for a disabled employee should also be proactively considered and kept under review especially where there have been significant changes in the workplace that have a direct impact on the employee.
Disability and workplace culture
Another recent Court of Appeal decision potentially widens the protections available to employees in respect of disability discrimination. In February, the court ruled that a 'provision, criterion or practice' (PCP) giving rise to a claim for discrimination under the EQA should be interpreted sufficiently widely so as to include informal and unwritten policies. It should not be given an overly narrow or technical interpretation.
Mr Carreras was employed as an analyst working long hours, starting daily between 8am and 9am and working to between 9pm and 11pm in order to cover the US markets. In July 2012, he had a cycling accident, which left him physically and emotionally affected. He returned to work, initially working eight-hour days, but within six months was working longer, until around 7pm. His employer did not ask for any medical reports, and was content to rely on Carreras' own assessment of how long he felt able to work.
From October 2013, the firm began asking Carreras to work longer hours, sending him regular emails asking him which nights he was intending to work late rather than whether he was able to work at all. Carreras felt pressurised into doing so, despite still suffering from symptoms caused by the accident. In February 2014, he formally objected to working longer hours in an email. Later that same day, he had a "heated exchange" with his employer, during which he was told he could "leave if he did not like it". Two hours later, he resigned.
The employment tribunal originally found that, although Carreras' injuries amounted to a disability, no PCP had been imposed as there was only an expectation, rather than a requirement, that he would work in the evenings. This was overturned by the EAT, which found that the expectation to work did in fact amount to a PCP and that Carreras had resigned in response to it.
The Court of Appeal agreed with the EAT. It found that there was a 'practice' in place that required Carreras to work evenings, which put him at a disadvantage as a result of his disability. Although Carreras had not been forced or coerced to work late, the court found that "it was made clear by a pattern of repeated requests that he was expected to do so, and that this created a pressure on him to agree".
The case demonstrates that employers with a similar 'long hours' culture should take care to ensure that disabled employees are not disadvantaged as a result of pressure to conform with such a culture. The same applies to any other employees with relevant protected characteristics, for example women who are statistically more likely to need to work flexibly because of caring responsibilities. It also once again highlights the importance of employers obtaining and being guided by medical evidence for disabled employees, rather than relying on an employee's own assessment of their abilities.
'Possibility' of disability
The third case was decided in favour of the employer, and is helpful to employers as it establishes that an equivocal statement by an employee about a possible disability is not enough to put an employer 'on notice' of a disability.
However, it would be dangerous to treat it as justification for failure to investigate whether an employee does in fact have a disability, where there are reasonable grounds to alert the employer that this is the case. Knowledge of a disability is not limited to actual knowledge; the test is what an employer could be reasonably expected to know, and employee assertions about disability are not often as tentative as in this case.
Mr Toy was a probationer police offer with Leicestershire Police. He passed an academic module, but was unable to pass the practical module needed to become an officer. The Police Regulations 2003 provide for dismissal in circumstances where a probationer is not likely to become an officer. During the three-stage dismissal process, Toy raised the possibility that he may have dyslexia. This was discounted as a reason for his failure to pass the practical module, and he was dismissed.
The employment tribunal dismissed Toy's discrimination claims against the police force, which included a disability discrimination claim. The EAT agreed. The EAT found that the tribunal could not have found anything other than that the police force did not and could not have reasonably known about Toy's dyslexia at the time of his dismissal (20-page / 110KB PDF). Toy had only stated that it was "possible" that he had dyslexia. At the same time, the issues highlighted by Toy's tutors, which included failure to follow instructions and safety issues were not linked to his dyslexia.
The tribunal found that termination of Toy's employment came from what was described as "an alarming picture of someone who was seen as unsuited to the role". The EAT added that there was "ample evidence ... that there were manifest failings which had nothing to do with dyslexia".
Aisleen Pugh is an employment law expert at Pinsent Masons, the law firm behind Out-Law.com.
France Telecom: lessons for UK employers following 'institutional harassment' ruling