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Does an employer have to know that an employee's misconduct was due to their disability?

May 24, 2018

 The case is an interesting one and a warning to employers to fully investigate all the facts before dismissing an employee.  The employee was a teacher, who suffered from cystic fibrosis, which required him to exercise up to three hours a day to clear his lungs.  After a new Head was appointed, his workload increased and he suffered from stress, which exacerbated his cystic fibrosis.  He was dismissed for showing 15 and 16 year olds the 18 rated file Halloween.

 

The dismissing panel did not accept that showing the film had been a momentary error of judgment, caused by the level of stress he was under.  A tribunal held that he had not been unfairly dismissed but had suffered discrimination arising from his disability.  Although the medical evidence available to the employer at the time of dismissal did not suggest a link between the misconduct and his disability, medical evidence available by the time of the tribunal hearing demonstrated otherwise.

 

The Court of Appeal upheld that the employer was liable for discrimination arising from disability, even though it was not aware that the employee's actions were due to their disability, which the employer knew about.

 

This case demonstrates that discrimination arising from disability can occur even where an employer has reasonably concluded, based on the evidence before them, that there is no link between an employee's actions and their disability. An employer's knowledge of the causal link is not relevant. The test is an objective rather than a subjective one.

 

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