Famously, so said Donald Rumsfeld, who went on to talk about “known unknowns” and “unknown knowns”.
These phrases have become part of our language in the years since Rumsfeld said them, although not quite at the level that they appear in Court of Appeal judgments (or at least, not as far as I am aware).
They may well have done, however, in the Court’s judgment in a case concerning disability discrimination. Specifically, in a case where the level of knowledge of the employer was not just of the fact of the employee’s disability (which was a known known), but the employer’s knowledge of the effect of that disability on the employee’s conduct at work.
The case involved a teacher, Mr Grosset, who has cystic fibrosis. This was known to the employer as was the fact that this was a disability. Reasonable adjustments had been agreed to accommodate that disability. Unfortunately, by the time a new head teacher arrived at the school, records were lost and the new head did not have the benefit of knowing about the disability or of the reasonable adjustments.
The new head set about implementing new performance standards, which led to a sudden and significant increase in Mr Grosset’s workload and in the pressure on him at work. Mr Grosset brought to the head’s attention the fact of his disability and the effect stress has on his cystic fibrosis but it was not accepted that the levels of pressure on him were excessive.
Not long after meeting with the head to raise his concerns, Mr Grosset, over the course of two separate lessons, showed a small group of 15- and 16-year-olds the 18-rated film “Halloween”.
Within a few weeks, Mr Grosset had been signed off with stress. During his absence, the head learned that “Halloween” had been shown to under 18-year-olds. He considered this to be gross misconduct. Mr Grosset admitted the misconduct, but argued that his judgment had been affected by stress, contributed to by his cystic fibrosis.
This was not accepted by the disciplinary panel nor, after he was summarily dismissed for gross misconduct, by the internal appeal panel.
Mr Grosset brought claims in the employment tribunal of unfair dismissal and disability discrimination. Interestingly, the employment tribunal held that his dismissal was discriminatory but nonetheless fair.
While this may seem contradictory, this is because there were (amongst others) two separate and distinct claims. On the one hand was the unfair dismissal claim, which was judged on the basis of whether the decision to dismiss fell within the band of reasonable responses open to the school in light of Mr Grosset’s admitted misconduct. The employment tribunal held that it was, given the seriousness of the misconduct and the school’s legitimate aims in safeguarding children.
On the other hand was the disability discrimination claim. Mr Grosset successfully claimed that, in dismissing him, the school treated him unfavourably because of something arising in consequence of his disability. In other words, he was saying that he made the error of judgement in showing the Halloween film because of the stress he was under and that stress arose from his disability.
Winding forward, in the Court of Appeal, it was argued that Mr Grosset was not discriminated against because, although the employer knew he had a disability, it did not know that his misconduct was caused by it.
No, said the Court. It is not a defence for an employer to say that it did not know that the misconduct arose in consequence of the disability. In order to make out his claim, Mr Grosset only had to show, first, that something had happened (the showing of the film being the “something”) and that his employer had treated him unfavourably (dismissed him) because of that “something”. Secondly, he only had to show that there was a causal link between the “something” and his disability.
There is no further requirement that the employer had to know, when deciding to treat an employee unfavourably, that the “something” arose because of their disability.
The implications here are that, where there is a “known unknown” such as the fact of a disability but not of the potential effects, it is always wise to turn that into a “known known” by getting medical evidence. That is the best way, as Rumsfeld was trying to explain, to assess the potential risks involved when deciding about what steps to take.
This blog post was written by Helen Webster. For further information, please contact:
Helen Webster, solicitor, Employment
T: 0115 983 8220
 City of York Council v Grosset  EWCA Civ 1105