A misconduct dismissal was held to breach EqA s.15 even though medical evidence that it was related to the disability was not available to the employer at the time.
An employer has a defence to s.15 (discrimination arising from disability) if it did not know, and could not reasonably have been expected to know, that the employee had the disability.
However, in City of York Council v Grosset (bailii.org) the employer knew of the claimant’s cystic fibrosis. The claimant was dismissed for showing an 18-rated film to vulnerable 15- and 16-year olds. He argued, and the tribunal agreed on the basis of medical evidence that was not available to the employer at the time, that he showed the film because of (stress arising due to) his cystic fibrosis, a disability,
The EAT upheld the tribunal’s decision that the dismissal was a breach of s.15. The tribunal was entitled to take the new medical evidence into account both in deciding the misconduct was a consequence of the disability, and in deciding the dismissal was not objectively justified.