The Equality Act 2010 prohibits discrimination on nine separate grounds (known as ‘protected characteristics’), including disability. Two recent cases have focused on one aspect of disability discrimination.

What is discrimination arising from disability?

An employer discriminates against an individual if:-

  • It treats an individual unfavourably because of something arising in consequence of his/her disability; and
  • It cannot show that the treatment is a proportionate means of achieving a legitimate aim.

An employer has a defence if the treatment was justified as a ‘proportionate means of achieving a legitimate aim’, or it did not know the individual was disabled.
A. The case of DL Insurance Services Ltd v O’Connor UKEAT/0230/17/LA

The Facts

Mrs O’Connor (‘Mrs OC’) worked for DL Insurance Limited (‘DL’). Her performance at work was good but, due to a disability, her attendance was poor. DL had a sickness absence policy (‘Policy’) for reporting and managing sickness absences.

Initially, no formal action was taken but, in 2016, Mrs OC was invited to a disciplinary hearing following 60 days of absence. Contrary to the Policy, no medical advice was sought and Mrs OC was issued with a 12 month warning during which she lost the right to contractual sick pay.

Mrs OC appealed unsuccessfully and issued an employment tribunal claim claiming her treatment amounted to discrimination arising out of her disability.

The Judgement – the Employment Tribunal (‘ET’) and Employment Appeal Tribunal (‘EAT’)

Both tribunals agreed Mrs OC’s absence was high and that it was legitimate for DL to use disciplinary action to encourage employees to return to work. However, because DL had not followed the Policy (no referral to occupational health), and there was no evidence that the action would improve Mrs OC’s attendance record, the claim succeeded. Interestingly, Mrs OC subsequently transferred to a different role where her attendance did improve.

B. The case of City of York Council v Grosset [2018] EWCA Civ 1105

The Facts

Mr Grosset (‘G’) suffers from cystic fibrosis. He was employed by the City of York Council (‘Council’) as an English teacher. Adjustments were initially made to support G but when a new Head Teacher introduced new performance standards, this increased G’s workload the resulting stress exacerbated his cystic fibrosis.

G became too ill to work and, during his absence, the Council discovered that he had shown a class of 15 and 16 year olds a horror film rated 18. Following an investigation, he was dismissed for gross misconduct.

G accepted the film had been inappropriate but argued that momentary lapse of judgment was linked to stress.

The Judgement

The ET and EAT found that G’s dismissal had been fair, but that it was discriminatory. The Council appealed arguing the dismissal was not discriminatory because it did not know G’s actions were linked to his disability.

The Court of Appeal dismissed the appeal, concluding that:-

• G’s disability had caused his misconduct; and

• The Council then treated him unfavourably by dismissing him because of his misconduct.

Although the Council’s aims were legitimate, a written warning would have been more appropriate.


  • Employees can lawfully be disciplined and, ultimately dismissed, on capability grounds. However, policies and procedures should be adhered to.
  • Managers should be trained to conduct disciplinary and dismissal procedures.
  • When disciplining disabled employees, consider whether the events in question are linked to the individual’s disability and seek medical advice if appropriate.

If you require any advice on the matters raised in this article, or any other employment issue, please do not hesitate to contact Debbie Sadler on 01494 478671 or at