The Claimant's Case

1. By his cross-appeal the Claimant challenges the ET majority's rejection of his unfair dismissal claim. Whilst accepting it was open to the ET to find the dismissal breached section 15 EqA but was still fair for section 98(4) Employment Rights Act 1996 ("ERA") purposes, this was an unusual case with only a majority finding adverse to the Claimant on the unfair dismissal claim. When considering the fairness of the dismissal, the ET was bound to assess the investigation carried out, tested against the standard of the range of reasonable responses of the reasonable employer. The Respondent had, however, rigidly separated out the question of whether the Claimant's actions constituted gross misconduct from his explanations for his actions from his increased workload, stress and cystic fibrosis. The grievance and disciplinary hearings were inextricably linked, and the ET erred in failing to recognise this. The decision to dismiss was made absent consideration of the broader issues, those raised by the grievance and dealt with separately by the Respondent. That rendered the decision unfair: the decision to treat the two processes separately falling outside the range of reasonable responses, alternatively meaning that the Respondent had failed to carry out a reasonable investigation.

1. In the alternative, the ET erred in failing to have proper regard to the information that should have been available in the disciplinary process, which included the relevant medical evidence, and that - essentially for the reasons that found favour with the ET on the section 15 claim - should have been found to take the dismissal outside the range of reasonable responses. The Respondent ensured it would not have that information by excluding material relied on by the Claimant. Given the Respondent, through its HR department, had knowledge of the broader picture raised by the grievance process, the ET had erred in failing to ask whether it could have been open to a reasonable employer to know certain facts for one purpose (the grievance) but deliberately withhold those facts from the panel constituted for another (the disciplinary process). No reasonable employer could have found the Claimant's actions amounted to gross misconduct, i.e. a deliberate and wilful contradiction of contractual terms or gross negligence.

The Respondent's Case

1. For the Respondent it is contended that the ET majority paid proper regard to the range of reasonable responses in its express consideration of the issue whether the decision to treat the disciplinary process separate from the grievance process was fair (see ET paragraph 152). It reached a permissible conclusion, given its earlier findings that the Respondent's disciplinary procedure allowed for this (paragraph 60) and HR advice had been taken on the issue. The events leading to the dismissal seemed quite distinct and separate to the subject matter of the grievance. Moreover, as the ACAS Code recognised, there was no single rule in this regard.

1. If the cross-appeal were to succeed, then the Respondent would further ask that the issue of contribution be remitted to the ET. Given its findings on the reason for the dismissal - the Claimant's misconduct - it had been wrong for the ET to conclude no reduction for contributory fault should be made. The Claimant resists that argument, contending that the ET applied the correct test as a matter of law and reached a permissible conclusion.

1. By section 15 EqA it is provided:

"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."

1. In IPC Media Ltd v Millar [2013] IRLR 707 EAT, Underhill J (as he then was), observed:

"17. Section 15 has no precise predecessor in the Disability Discrimination Act 1995, but it does much the same job as was done by s.3A(1) of that Act, which proscribed 'disability-related' discrimination, prior to the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700. We cannot see any difficulties about its meaning and effect. We would only mention, because it is apposite to the issues on this appeal, that, as with other species of discrimination, an act or omission can occur 'because of' a proscribed factor as long as that factor operates on the mind of the putative discriminator (consciously or subconsciously) to a significant extent: see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at p.576. (The use of the phrase 'because of' in place of the terminology of 'reason' or 'grounds' in the predecessor legislation clearly does not connote any different test.)"

1. Section 15 was further analysed by Langstaff J, sitting alone in Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305 EAT, as follows:

"24. The ingredients of a claim of "discrimination arising from disability" (as it is headed and as often referred to) are defined by statute. It is therefore to the statute, and not to any colloquial or shorthand representation of it, that a tribunal should have regard.

25. Section 15 [set out above] involves no question of less favourable treatment. It is therefore distinct from direct discrimination, which does. Nor does section 15 concern discrimination "related to" disability. It would be a mistake to treat it as if it did, for that is a description of statutory provisions superseded by section 15 of the Equality Act 2010.

26. The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The tribunal has first to focus on the words "because of something", and therefore has to identify "something" - and second on the fact that that "something" must be "something arising in consequence of B's disability", which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the tribunal to conclude that it is A's treatment of B that is because of something arising, and that it is unfavourable to B. I shall return to that part of the test for completeness, though it does not directly arise before me.

27. In my view, it does not matter precisely in which order the tribunal takes the relevant steps. It might ask first what the consequence, result or outcome of the disability is, in order to answer the question posed by "in consequence of", and thus find out what the "something" is, and then proceed to ask if it is "because of" that that A treated B unfavourably. It might equally ask why it was that A treated B unfavourably, and having identified that, ask whether that was something that arose in consequence of B's disability.

28. The words "arising in consequence of" may give some scope for a wider causal connection than the words "because of", though it is likely that the difference, if any, will in most cases be small; the statute seeks to know what the consequence, the result, the outcome is of the disability and what the disability has led to.

…

30. The primary consideration in Trustees of Swansea University Pension and Assurance Scheme v Williams [2015] ICR 1197 was as to the meaning of the word "unfavourably" in the context of the facts of that case, but at para 29 there was a broader discussion of the effects of the wording of section 15(1)(a). In that an example was given of:

"A person who is asked, on pain of discipline, to perform at a rate which he cannot achieve because of his disability would be treated unfavourably if he were then to be subjected to that discipline, or threatened with it: this would not be directly because of his disability, but because of that which arose from it - his inability to perform work at the same speed or with the same efficiency."

31. Once the question has been asked as to what the "something" is that is relevant that has arisen in consequence of disability and a tribunal has decided that that something has been a consequence of the disability, this being a causal test, it will turn to ask whether the treatment complained of as unfavourable is because of that. It therefore needs to know what treatment has happened because of the "something" and whether it is unfavourable. As I have indicated, the argument may just as well be put the other way round and should be productive of precisely the same result. What unfavourable treatment is complained of? What was it because of? "Because of" is a causal test. A robust approach should be taken as is common throughout the law in respect of such a test.

32. Miss Ellenbogen submits that the wording "because of" is familiar territory in the 2010 Act. Though section 15 is a new section designed to meet the inequity of the conclusion of the Malcolm appeal in the House of Lords, the definition of direct discrimination had been on the statute books for some 35 years before the 2010 Act. The words "because of" were not used in earlier formulations; the words "on the grounds of" were. There is now considerable case law to the general effect that the change in wording does not connote a change of substance. She argues that accordingly cases that stand as authorities in respect of the meaning of "on the grounds of" remain appropriate to consider in respect of the words "because of" and if this is so (as she contends) in relation to section 13, for instance, which is the provision relating to direct discrimination, so the same words in the same statute should be given the same force in section 15. Since the focus is on the treatment by A, A being the respondent in this and most cases, the renowned discussion in particular of the meaning of "on the ground of" by Lord Nicholls or Birkenhead in Nagarajan v London Regional Transport [1999] ICR 877, 884-885; [2000] 1 AC 501 remains apposite.

33. There is some support for this when considering section 15 as a whole. Section 15(2) disapplies subsection (1) in any case in which A shows that A did not know and could not reasonably have been expected to know of the disability. That is strongly suggestive that the focus of the section is on the thought processes, conscious or unconscious, of A. It therefore seems to me there is considerable force in this submission, though for present purposes I do not have to resolve it, and it may be that when there is closer focus on it following more developed argument a different view might be taken.

34. Once a tribunal has identified what is the treatment complained of and what is the something that has arisen in consequence of B's disability, the causal question invoked by "because of" as an explanation for A's treatment - and it may be thought processes, subconscious or unconscious - will be whether what happened was truly a consequence of the "something", and in turn that the "something" was a consequence of the disability. The approach therefore taken by the tribunal here was, as the citations I have given above show, unacceptable. It impermissibly ran together the causal questions. It did so by looking for some "link", in terms that suggested it thought the link could be relatively nebulous, between what had happened and was complained of on the one hand, and the disability on the other. The problem with such an approach is that it may insufficiently distinguish the context within which events occur from those matters which are causative. …"

1. In Weerasinghe, the EAT criticised the ET's approach to section 15 as failing to distinguish between context, on the one hand, and cause or consequence, on the other (see paragraph 43; see also Private Medicine Intermediaries Ltd v Hodkinson UKEAT/0134/15 at paragraphs at paragraphs 25, 26, 34 and 35). That said, the prohibited factor - the consequence of the employee's disability - does not have to be the sole cause of the employer's action; see as observed by Laing J in Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15, where she opined that section 15(1) would allow for something looser:

"42. … a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment. …"

1. On the question of justification, the approach is as laid down by the Court of Appeal in Hardy & Hansons plc v Lax [2005] ICR 1565, where it was explained that:

"32. … It must be objectively justifiable (Barry v Midland Bank plc [1999] ICR 859) and I accept that the word "necessary" used in Bilka-Kaufaus [GmbH v Weber von Hartz] [1987] ICR 110 is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word "reasonably" reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the employers' submission (apparently accepted by the appeal tribunal) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.

33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby [v Accrington and Rossendale College and Ors] [2001] ICR 1189 and in Cadman [v Health and Safety Executive] [2005] ICR 1546, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman, the respect due to the conclusions of the fact-finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.

34. The power and duty of the employment tribunal to pass judgment on the employer's attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions."

See also Hensman v Ministry of Defence UKEAT/0067/14 at paragraph 44.

1. In respect of the unfair dismissal complaint, the ET was concerned with the test of reasonableness as set down by section 98(4) of the ERA as follows:

"(4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. As the ET was dealing with a conduct dismissal, it was guided by the seminal case of British Home Stores Ltd v Burchell [1980] ICR 303 EAT and was bound to apply the test of the band of reasonable responses of the reasonable employer, being careful not to substitute its view for that of the reasonable employer in those circumstances.

The Appeal

1. The Respondent urges that the ET's approach to the section 15 claim ought properly to have been informed by the finding of the ET majority on the unfair dismissal claim that the Respondent had reasonably concluded that there was nothing to make a link between the Claimant's misconduct and the disability. It contends the ET failed to apply the correct legal test as laid down in Weerasinghe and Millar to those findings when assessing causation for section 15 EqA purposes.

1. There is an obvious difficulty in reading across from an ET's finding on an unfair dismissal claim to a corresponding claim brought on the same facts under section 15 EqA. Different tests are involved, and it is common ground that different conclusions might properly be reached. In both cases, we take the view that the touchstone must remain the specific wording of the relevant statutory provision, albeit whilst also having regard to the guidance provided by the case law.

1. Thus, approaching section 15 EqA, following the guidance provided in Weerasinghe, we agree with the Respondent that the definition of the "something" gives rise to a question of causation: it has to be that which caused the employer (A) to treat the employee (B) unfavourably. It requires, we think, the ET to look into the mind of the employer - that is, of the relevant decision taker - and to ask what the factor was, whether conscious or subconscious, that materially operated on their mind (per Underhill J in Millar) or significantly influenced the decision (per Laing J in Hall). Having thus defined the "something" - in this case, as is common ground, the misconduct in terms of the inappropriate showing of the film Halloween - the ET has to ask whether that "something" arose as a consequence of the Claimant's disability. That, as the parties accept, gives rise to a question to be answered by the ET on an objective basis: on the evidence before it, did the "something" arise in consequence of the employee's disability? In this case the ET found as a fact that the inappropriate showing of the film, the "something", arose as a consequence of the Claimant's disability - his impaired mental state.

1. Accepting the ET made that objective finding as to the consequence of the Claimant's disability, the Respondent contends it nevertheless erred in failing to have regard to the reasoning of the decision maker - that which operated on the Respondent's mind or significantly influenced its decision - which went to the question of causation. As Ms Davies observes, however, that which operated on the Respondent's mind or which significantly influenced its decision, was not in dispute: it was, as we have already set out, the Claimant's act of misconduct in inappropriately showing the film. The ET plainly had that firmly in mind. It is recorded at the outset of paragraph 95. It did not fail to appreciate the need to make a finding on that question of causation but it did not spend a great deal of time on the issue, because it was not in dispute; as the ET recorded, when returning to the reason for the dismissal under the heading of the unfair dismissal claim (see paragraph 132):

"There was no dispute that the reason for … dismissal was his misconduct in showing the film. …"

1. The Respondent nevertheless objects that the ET was persuaded by the medical evidence before it, which was not available to the Respondent (for which the ET majority did not criticise the Respondent in relation to the unfair dismissal case): it was unfair if an employer was to be found liable for discrimination under section 15 in such circumstances. That, however, is an attack not on the ET's conclusion on causation in terms of that which caused the Respondent to dismiss - the "something" - but is an attempt to go behind the ET's answer to the separate question, whether that "something" arose in consequence of the Claimant's disability, a question that Mr Healy accepts was to be answered on an objective basis and which could thus take into account evidence before the ET that had not been before the Respondent. On the basis of the evidence before the ET, the Respondent has to accept that it reached a permissible conclusion on the question of consequence.

1. As for the unfairness of which the Respondent complains, we note that where an employer does not know and could not reasonably have been expected to know that the employee had the disability in question, liability is avoided by virtue of section 15(2) EqA. In the present case, the ET expressly found the Respondent had the requisite knowledge of the Claimant's disability such as to mean it could not avail itself of that defence. It was on notice of his disability and thus the potential difficulties that he might suffer. As the ET put it:

"88. … the school can reasonably be expected to have known not just that [the Claimant] had the disability, but to have been aware, before crunch point was reached in mid October, of the likely impact on [the Claimant] of the additional changes in his workload. …"

1. Where, as here, an employer has the requisite knowledge of the employee's disability, section 15 permits that liability may arise (subject to objective justification) once that employer treats the employee unfavourably because of something that - as a matter of fact, on the evidence before the ET - arises in consequence of their disability. The lay members of this EAT panel in particular, with their experience of workplace matters, see no unfairness. The employer knows, or should reasonably know, of the employee's disability and is thus duly put on notice. If it then treats that individual unfavourably, it may be held liable if it has done so because of something that arises as a consequence of that disability. That the employer genuinely did not intend to discriminate because of disability is not the question. The issue is whether or not it in fact did so because it treated a disabled employee unfavourably because of something arising in consequence of their disability.

1. We then turn to the Respondent's second ground of appeal, which concerns the ET's approach to justification. The approach requires an objective test, albeit one that has regard to the working practices and business considerations of the employer as laid down in Lax. Mr Healy complains that the ET's reasoning on justification demonstrates little engagement with the matters that held sway with the Respondent. Allowing that it is an objective test, he says the ET's erroneous approach to justification was betrayed by its focus on the medical evidence before it but not the Respondent at the relevant time.

1. We take this matter fairly shortly, as we consider the answer to the appeal is clear. The ET did not lose sight of that which concerned the Respondent. It took care to define the Respondent's legitimate aim, the protection of children and ensuring disciplinary standards were maintained. It then carried out the balancing exercise required of it by reference to that aim. The ET thus kept the Respondent's "workplace practices and business considerations" firmly at the centre of its reasoning. Doing so, it reached a different conclusion to the Respondent, permissibly taking into account medical evidence that had not been before the Respondent. It was entitled to do so. As Mr Healy fairly conceded in oral submission, applying an objective test to the question of justification - as the ET was required to do - it is hard to criticise it for failing to reach the same subjective conclusion as the Respondent. We are satisfied the ET adopted the correct approach to this question. The appeal is dismissed.

The Cross-Appeal

1. We then turn to the cross-appeal, by which the Claimant challenges the ET majority's rejection of his unfair dismissal claim. As Ms Davies accepts, it was open to the ET to find that the dismissal breached section 15 EqA but still find it was fair for the purposes of section 98(4) ERA; the tests are, as we reminded ourselves at the outset of this discussion, different. When considering the fairness of the dismissal, the ET was bound to assess the investigation carried out, applying the standard of the range of reasonable responses of the reasonable employer. The Claimant nevertheless criticises its conclusions, both on the investigation and the fairness of the decision, seeking to persuade us that the ET minority judgment should be preferred.

1. We see the point made by the Claimant that the Respondent's decision to separate out the grievance process from the disciplinary procedure meant its investigation and dismissal decision might have failed to include broader issues, such as the stress suffered by the Claimant and that this (and thus his error of judgement in showing the film) might have been avoided if the Respondent had complied with its duty to make reasonable adjustments. This is, however, a point with which the ET majority expressly engaged and concluded (see ET paragraph 152) that the Respondent's approach did not fall outside the band of reasonable responses. Whether we would have reached the same decision we cannot say; ultimately the ET was best placed to make that judgment, even if by a majority. We see no proper basis on which we can interfere.

1. The same point can be made in terms of the decision reached by the Respondent. We, again, see the force of Ms Davies' arguments but consider this is really an attempt to re-run the case as put below. Whilst a different ET might - as the minority member of this ET did - reach a different conclusion to the majority, we cannot say it was perverse to determine this case against the Claimant. The ET considered the medical evidence that the Claimant adduced in both the disciplinary and grievance procedures and took care to go through the history, noting what the Claimant was able to put forward during the disciplinary process. The evidence of the relevant decision takers was properly scrutinised and tested; ultimately the ET majority permissibly concluded that the decision reached was one that fell within the range. We are therefore satisfied that the cross-appeal should also be dismissed.

1. That being so, there is no reason for us to go on to consider the contingent, further appeal on contribution.

1. Finally, we wish to add one further observation. This was plainly a difficult case for the parties and raised complex questions for the ET. We consider it dealt with those issues in a balanced and careful way, and we give credit to its well-reasoned Judgment, which we are satisfied should be upheld.