It’s Not What You Know.

By Andrew Knorpel, Partner and Head of the Employment team.

Mr Grosset was employed by City of York Council as Head of English at a local school. He was dismissed for gross misconduct after he had shown the 18-rated horror film Halloween to a class of 15 and 16 year old pupils. His claim for unfair dismissal was dismissed on the basis that it had been within the range of reasonable responses for the employer (with the information which it was reasonable for them to have at that time) to reject Mr Grosset’s argument that his error of judgment was as a result of the stress he was suffering. The employment tribunal also found that it was reasonable for the employer to find that his apology to the school had not been genuine.

However, Mr Grosset had also brought a claim of disability discrimination and this is where we need to take a step back to the facts of the case. Mr Grosset suffered from cystic fibrosis (an admitted disability) in respect of which the school had made reasonable adjustments since the start of his employment. A new headteacher started who wasn’t made aware of Mr Grosset’s disability and who imposed new performance targets. These led to a new internal monitoring regime and a new English syllabus, which in turn led to a substantially increased workload on Mr Grosset, increased stress and a drop in his lung function to an all-time low with the prospect of the need for a lung transplant. It was in these circumstances that he showed Halloween and then took sick leave for stress before being dismissed.

The tribunal found that (a) he had shown the film as a result of an error of judgment in choosing Halloween and this was due to stress, (b) he would not have made that error if he had not been suffering from stress, (c) the stress arose to a great extent from his disability and (d) he had been dismissed for a reason relating to his disability. The tribunal reached this conclusion on the basis of medical evidence which had not been available to the school at the time of dismissal or appeal.

Although the tribunal went on to find that the school had a legitimate aim of protecting its pupils and maintaining disciplinary standards, they felt that dismissal was a disproportionate sanction. This was because they also found that (a) Mr Grosset had been affected by disability-related stress, (b) his stress was caused in part by a failure by the employer to make reasonable adjustments relating to his workload, (c) his apology was sincere, (d) there was no real risk of repetition and (e) a written warning would have been the appropriate sanction.

When City of York Council appealed, the Court of Appeal confirmed that it was not necessary for Mr Grosset to show that the school had known that his actions arose from his disability. All he had to do was prove that (a) the school made its decision based on “something” (his showing Halloween) and (b) that “something” arose as a consequence of his disability. This means that there is no requirement for knowledge of (b) on the part of the employer and it was perfectly proper for the tribunal to have found disability discrimination even though the claim for unfair dismissal was rejected.

According to reports, Mr Grosset was awarded £646,000 for disability discrimination.

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