Grosset v City of York Council – dismissal of employee with cystic fibrosis for error of judgment was discriminatory

In the case of Grosset v City of York Council ET/1801465/14 the Employment Tribunal held that the dismissal of a school teacher who suffers from cystic fibrosis for a serious error of judgment (showing an 18-rated film to a class of 15/16-year-olds) was discriminatory.

Mr Grosset was employed as head of the English department at Joseph Rowntree School (“the School”) . He suffers from cystic fibrosis, which did not normally affect his ability to undertake his role. However, Mr Grosset was required to undertake a strict regime of physical exercise each day in order to remedy his condition, and had to keep stress as low as possible (as an increase in stress would potentially cause his condition to deteriorate).

From the start of his employment at the School the then-head teacher, Mrs Wright, implemented adjustments to his duties in order to minimise the stress caused to him by his position – this included giving him sufficient notice of meetings and consulting with him over any major changes. In September 2013 a new head teacher, Mr Crane, commenced employment at the School. Mr Crane was not informed of the fact that Mr Grosset suffered from cystic fibrosis and was not informed of the measures that had previously been put in place for Mr Grosset.

Mr Crane put in place new systems for all departments, with the aim of improving outcomes for pupils, and increased the workload for the heads of departments. All of the departments were also subjected to extra scrutiny, with ‘Focus Fortnights’ introduced to enable the outcomes of each department to be scrutinised on a fortnightly basis. The new systems and extra scrutiny caused a substantial amount of extra work for the heads of departments.

Mr Grosset started to feel under strain as a result of the extra workload. On 24 September 2013 he wrote a letter to his union representative setting out a number of complaints about the changes Mr Crane had introduced, and started to make a log of incidents as they occurred. He then wrote a letter to Mr Crane on 10 October 2013 setting out, among other things, that the increased workload was causing him to suffer from stress, and that he did not believe that Mr Crane was sufficiently aware of the nature or effect of his disability. He also asked that there be a reduction in his teaching load and a reduction or prioritization of tasks and deadlines.

In October 2013 Mr Grosset was informed by his consultant that his lung function had fallen to below 50%, whereas it would normally be in the 60% range.

On 8 November 2013 Mr Grosset showed the 18-rated horror film ‘Halloween’ to a class of 15/16 year-olds. Later in November 2013 Mr Grosset felt that he could no longer continue to work due to the stress that his increased workload was causing him, and was signed off work sick. He remained absent from work due to illness until his dismissal.

On 29 November 2013, whilst covering for Mr Grosset in his absence, Mr Crane discovered that Mr Grosset had allow his students to watch ‘Halloween’. Mr Crane was concerned by this and called Mr Grosset to inform him that he was being suspended. He also asked that a colleague, Mr Haigh, investigate the incident. Mr Haigh conducted an investigation and concluded that Mr Grosset had shown the film to a class of vulnerable students without first obtaining parental consent, or seeking the approval of the head teacher. Mr Grosset was subsequently dismissed by way of letter dated 1 May 2014 for gross misconduct, after a disciplinary hearing was held. Mr Grosset appealed the decision to dismiss him but was not successful. He subsequently made a variety of claims in the Employment Tribunal, including claims for unfair dismissal, direct disability discrimination, discrimination arising from disability, indirect discrimination,¬†harassment, victimisation, and failure to make reasonable adjustments.

The Employment Tribunal dismissed Mr Grosset’s claims for direct discrimination, indirect discrimination, harassment, unfair dismissal, and victimisation. It did, however, uphold his claims for discrimination arising from disability, failure to make reasonable adjustments, and breach of contract.

With regards to the discrimination arising from disability claim, the Employment Tribunal upheld two complaints: firstly, that the increase in his workload discriminated against him and, secondly, that his dismissal was discriminatory.

In respect of the first finding, the Tribunal held that there had been a significant increase in workload for Mr Grosset and that this was unfavourable treatment. The Tribunal also held that this unfavourable treatment arose because of something arising in consequence of Mr Grosset’s cystic fibrosis and that the School had failed to sufficiently consider alternatives that would have reduced Mr Grosset’s workload (and therefore his stress levels).

In respect of the second finding, the Tribunal held that Mr Grosset’s cystic fibrosis had been exacerbated by the stress that he had been suffering, and that his deteriorating condition had caused him to make an error of judgment. The Tribunal accepted that Mr Grosset’s error of judgment was a “side effect of the stress caused, in significant part, by his cystic fibrosis” – the effect was circular: the more stress that Mr Grosset suffered the worse his condition became, and the worse his condition became the more he suffered from stress. The Tribunal also dismissed an argument by the School that Mr Grosset’s dismissal was justified by the need to safeguard children: the Tribunal accepted that the need to safeguard children was a legitimate policy but that the decision to dismiss Mr Grosset was not proportionate – the Tribunal considered that, given Mr Grosset’s unblemished disciplinary and performance record, a final written warning would have been appropriate in the circumstances.

With regards to the claim for failure to make reasonable adjustments, the Tribunal upheld this claim on the basis that two adjustments (sufficient notice of meetings and consultation over major changes) agreed with the previous head teacher had not been notified to Mr Crane when he started his job.

By a majority decision the Tribunal decided that Mr Grosset’s dismissal was fair: the School had undertaken a reasonable investigation, had based its decision to dismiss on the outcome of that investigation, had made a reasonable decision based on the facts before it, and had a genuine belief in Mr Grosset’s guilt.

Chris Hadrill, a partner in the Employment Department at Redmans, commented on the case: “This case reinforces that employers must ensure that there is continuity in place for disabled employees if there is a change of management, and must also ensure that the effects of a disabled employee’s condition are suitably taken into account in any disciplinary or capability process.”