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Disabled teacher who showed horror film to class wins £646k payout

A disabled teacher who showed the 18-rated film Halloween to a class of 15- and 16-year-olds has had his claim for discrimination arising from disability upheld in the Court of Appeal and is reportedly set to receive a £646,000 payout.

The claimant in City of York Council v Grosset [2018] EWCA Civ 1105 suffers from cystic fibrosis, which the court noted was “a serious disease”.

He was employed by the council with full knowledge of this and at the outset various reasonable adjustments were agreed to accommodate his disability. However, no proper record was kept of the position and it was lost sight of when a new head teacher took over at Joseph Rowntree School.

The claimant's case was that he was subjected to an increased workload which he found he could not cope with. He was unable to absorb the increased pressure of work by working in his own time, by reason of the time-consuming exercise regime he had to pursue to keep his disease under control.

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Mr Grosset became very stressed under this increased pressure of work; his health suffered badly; and that in turn increased the level of stress, as he became worried not only about not coping at work but also that his health might be about to collapse and that he might need lung transplants.

Whilst subject to this high level of stress, the claimant showed the class the film. He did not obtain approval for this from the school. Nor did he obtain consent from the pupils' parents.

When the school learned about this, disciplinary charges were brought against Mr Grosset. These resulted in his summary dismissal for gross misconduct.

In the disciplinary proceedings, the claimant accepted that showing the film was inappropriate and maintained that it had happened as a result of an error of judgment on his part arising from the high level of stress he was under at the time in consequence of his disability.

The council did not accept that the showing of the film had been a result of an error of judgment brought on by stress. Nor did it accept that expressions of regret and remorse by the claimant were sincere.

The claimant brought a range of claims against the respondent in relation to his dismissal. The Employment Tribunal upheld some of these and dismissed others.

In particular, the ET – which had access to fuller and more relevant medical evidence than was before the council when it made its decision – unanimously found that the claimant's claim of breach of section 15 of the Equality Act 2010 in relation to his dismissal was made out.

The ET found that the claimant had shown the film when suffering from an impaired mental state due to stress at such a high level that errors of judgment might be expected to arise as a result. The claimant had never previously made a comparable error and there had been no prior concerns about his safeguarding responsibilities.

At the same time the ET ruled, by a majority, that his claim of unfair dismissal based on section 98 of the Employment Rights Act 1996 should be dismissed.

The council’s appeal in relation to the claim under section 15 EqA in respect of the dismissal and the claimant's appeal in relation to the ET's decision regarding unfair dismissal were both unanimously dismissed by the EAT.

City of York then appealed to the Court of Appeal.

John Bowers QC, counsel for City of York, accepted that Mr Grosset’s dismissal was unfavourable treatment for the purposes of section 15(1)(a); that the unfavourable treatment was imposed, as the ET found, because the claimant showed pupils an inappropriate film (i.e. the showing of the film was the "something" referred to in section 15(1)(a)); and that according to the findings of the ET, which the respondent council did not challenge on appeal, the claimant showed the film in consequence of his disability.

However, Mr Bowers submitted that this was not sufficient to satisfy section 15(1)(a). He argued that the claimant also had to show that the respondent council itself appreciated that the claimant's behaviour in showing the film arose in consequence of his disability.

This the claimant could not do, it was argued, at any rate on the facts found by the ET, because it appeared to accept the evidence of the decision-makers for the respondent that they did not believe the claimant's claim that his behaviour was the result of a misjudgment caused by levels of stress arising in consequence of his disability.

Lord Justice Sales said Mr Bowers' submission on the construction of section 15(1)(a) must be rejected.

“The rulings of the ET and the EAT that the claimant's case under section 15(1)(a) was made out in relation to his dismissal on the basis of the findings referred to……cannot be faulted,” he said.

Lord Justice Sales said that on its proper construction, section 15(1)(a) required an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) "something"? and (ii) did that "something" arise in consequence of B's disability.

The Court of Appeal judge said that in this case, it was clear that the respondent dismissed the claimant because he showed the film. “That is the relevant "something" for the purposes of analysis.”

On the second issue, whether there was a causal link between B’s disability and the relevant ‘something’, the judge said: “In this case, on the findings of the ET there was such a causal link. The claimant showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work in the autumn term of 2013.”

Lord Justice Sales said that in his view, contrary to Mr Bowers' argument, it was not possible to spell out of section 15(1)(a) a further requirement, that A must be shown to have been aware when choosing to subject B to the unfavourable treatment in question that the relevant "something" arose in consequence of B's disability (i.e. that A should himself be aware of the objective causation referred to in issue (ii) above).”

Section 15 EqA established a particular balance between a person suffering from a disability and a defendant, the Court of Appeal judge said. “The risk of unfavourable treatment because of something that has arisen from the disability is cast onto the defendant rather than the claimant. If the defendant does not know that the claimant suffers from a disability, he has a defence. But if he does know that there is a disability, he would be wise to look into the matter more carefully before taking unfavourable action. The defendant will also have a defence if he is able to justify the unfavourable treatment under subsection 15(1)(b).”

Lord Justice Sales said that in this case, the claimant maintained to the council that the showing of the film was down to an error of judgment arising in consequence of his disability. “He satisfied the ET that this was indeed the case, although the respondent did not believe him. In those circumstances, it seems clear that Parliament intended that the claimant should have the protection of section 15, subject to the issue of justification under subsection 15(1)(b).”

The Court of Appeal also upheld the ET’s ruling on justification. Lord Justice Sales said that in his view the ET and the EAT had made a lawful assessment of the position in relation to this defence and the appeal in respect of this issue should also be dismissed.

“Contrary to Mr Bowers' submission, and as the EAT rightly held, there is no inconsistency between the ET's rejection of the claimant's claim of unfair dismissal and its upholding his claim under section 15 EqA in respect of his dismissal,” Lord Justice Sales said.

“In the present case, the ET's assessment that there was no good justification under subsection 15(1)(b) for the claimant's dismissal contains no error of law. The ET correctly identified the relevant legitimate aims of the respondent employer and took them properly into account. It was entitled to find that the step of dismissal was disproportionate in the circumstances.”

Jon Stonehouse, director of children, education and communities at City of York Council, said: “We hold safeguarding pupils and the highest professional standards as a priority in our schools.

“The school’s governing body considered all the information available to it before deciding to dismiss a teacher who had shown an 18 certificate film with scenes of extreme violence and horror to a class of 15 year olds including some vulnerable young people.

“Six months after the dismissal, a doctor’s letter relating to the teacher but not previously shown to the school, was submitted to an employment tribunal and this was used to come to the final judgement.”

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