City of York Council v P J Grosset
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Peter Jackson,Lord Justice Sales |
| Judgment Date | 15 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1105 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/4373 |
| Date | 15 May 2018 |
[2018] EWCA Civ 1105
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
UKEAT 0015/16/BA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Sales
and
Lord Justice Peter Jackson
Case No: A2/2016/4373
John Bowers QC and Sam Healy (instructed by City of York Council) for the Appellant
Ben Cooper QC and Angharad Davies (instructed by National Education Union) for the Respondent
Hearing date 19 April 2018
Introduction
This case concerns a claim of discrimination arising from disability under section 15 of the Equality Act 2010 (“EqA”) in relation to the dismissal of a teacher on grounds of gross misconduct. I will refer to the parties as the claimant and the respondent, as they were referred to below by the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”).
The claimant was a teacher employed by the respondent. He suffers from a disability in the form of cystic fibrosis, a serious disease. He was employed by the respondent with full knowledge of this and at the outset various reasonable adjustments were agreed to accommodate his disability. Unfortunately, no proper record was kept of the position and it was lost sight of when a new head teacher took over at the school. The claimant's case is 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 has to pursue to keep his disease under control. He 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 a class of 15—year-olds an 18-rated horror film, entitled Halloween. 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 the claimant. 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 respondent 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 ET (Employment Judge Forrest, Mr Williamson and Mrs Richards) upheld some of these and dismissed others. In particular, the ET unanimously found that the claimant's claim of breach of section 15 EqA in relation to his dismissal was made out whilst at the same time ruling, by a majority, that his claim of unfair dismissal based on section 98 of the Employment Rights Act 1996 should be dismissed. This was on the basis that the findings made by the respondent and the sanction imposed fell within the range of reasonable responses open to it as employer: see British Home Stores Ltd v Burchell [1980] ICR 303.
The respondent'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 (HHJ Eady QC, Mr Beynon and Mr Smith). The respondent now appeals to this court in relation to the decision of the EAT in relation to the dismissal and section 15 EqA. There is no appeal by the claimant in relation to unfair dismissal.
Section 15 EqA provides:
“ 15 Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”
The two issues which arise on the appeal concern (1) the proper construction of section 15(1)(a) and (2) the proper approach to determining whether a defence of justification has been made out under section 15(1)(b).
Factual background
The factual background is helpfully and succinctly set out by the EAT. I have gratefully drawn on its account for the following summary.
The claimant suffers from cystic fibrosis and, as such, it was accepted that he was a disabled person for the purposes of the EqA. The claimant had disclosed his condition when he successfully applied for the position as Head of English at the Joseph Rowntree School (“the School”), a secondary comprehensive school operated by the respondent. The respondent thus had the requisite knowledge of the claimant's disability and reasonable adjustments had been put in place by the then Head Teacher when the claimant started his role in 2011. The claimant's self-management of his cystic fibrosis imposed heavy demands on him, including needing to follow a lengthy daily exercise regime.
At that time, the School was in difficulties and the English department in disarray. The claimant succeeded in turning around the fortunes of the department according to the standards applying at that time, achieving the School's best ever GCSE results in the summer of 2013.
In 2013, however, the performance standards applied to schools changed. Under the new performance standards, the emphasis shifted from GCSE results to measurements of progress for individual pupils. This change coincided with the appointment of a new Head Teacher, Mr Crane. Most unfortunately, Mr Crane had not been briefed by the respondent about the claimant's disability, nor about the agreement in 2011 regarding reasonable adjustments to accommodate this.
Application of the new performance standards suggested there were still problems in English at the School, a point highlighted in a report to the governing body in September 2013. This led to a “robust and challenging” meeting between the claimant and the School's senior leadership team, led by Mr Crane. Although the claimant was given inadequate notice of the issues to be discussed at the meeting, and disagreed with certain of the proposals, he put his weight behind implementation of the decisions made, albeit that imposed a significant additional burden on his department.
The workload for the claimant and the English department increased for the autumn term as some pupils were moved to a new IGCSE examination and syllabus. At the same time the claimant had to comply with an innovation introduced by Mr Crane, called a “Focus Fortnight”. This was designed to encourage greater reflection within, and upon, a particular department and was first tried out with the English department. Whilst intended to be supportive, it involved a significant increase in work for the claimant and the prospect of criticism of him and his department, and hence added to the work pressures upon him. Towards the end of the first Focus Fortnight, the claimant wrote a letter of complaint to Mr Crane, concerning what the claimant considered to be unreasonable deadlines, workload and pressure. He referred to his cystic fibrosis, not as meaning he was unable to do his job — he had shown he could — but as relevant to why he was raising his concerns at that stage, as he needed to be able to manage his health issues, and asked for consideration of a reduction or prioritisation of his tasks and a reduction of his workload.
There was a meeting on 15 October 2013, at which Mr Crane, who had not previously been aware of the claimant's health condition, agreed he should be referred to Occupational Health but did not accept the claimant's account of his workload and other pressures. He suggested that the claimant might ask for a day out from teaching duties if experiencing a particular backlog but did not offer a regular reduction. In fact, the Occupational Health referral was delayed; the claimant received his first appointment on 17 December 2013, by which time he had been off work for some weeks with stress.
Meanwhile, in October 2013, the claimant passed his annual appraisal. However, by the end of the month his lung function had dropped to an all-time low. By this stage he was very worried indeed about his health and about what this deterioration might mean for him, including the frightening prospect of needing to have a double lung transplant.
In November, the English department was selected for a second Focus Fortnight, with the consequential additional stress for the claimant that entailed.
On 8 November 2013, pupils sat their final IGCSE exam and the claimant took a small class immediately following that exam. The class concerned was described as a “nurture group”, a small class of a dozen or so 15—and 16-year-olds who for one reason or another needed more attention than others. The ET describes what took place in detail in its judgment. In summary, over the course of two separate lessons, on Friday, 8 November and again on Monday, 11 November, the claimant showed the pupils the 18-rated film Halloween. His intention was to use this as a vehicle for discussion in the class about construction of narrative. He did not inform the school that he was going to use an 18-rated film for this purpose, nor did he obtain consent from the parents of the...
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