I would imagine that a case involving an employee suffering from paranoid
schizophrenia who stopped taking his medication and sexually assaulted
female colleagues would rank high up there on HR’s list of nightmare
scenarios. This was a scenario that Aviva faced in respect of an employee
named Burdett. Burdett claimed unfair dismissal and disability
discrimination under s15 of the Equality Act 2010. When this reached the
Tribunal the Tribunal found that dismissal, in the circumstances, for gross
misconduct was fair because the employee had admitted to the sexual assault of his female colleagues. As regards the disability claim, they found that dismissal was a proportionate means of achieving the employer’s legitimate business aims of setting appropriate standards of conduct within the workplace.
However, Burdett went on to appeal, arguing that whilst he had admitted to
the acts in question, he had not admitted to the mental state required to be
guilty of those acts. This is because for gross misconduct to be found, two
aspects need to be present; firstly the misconduct has to be so serious that
it revokes the employment contract entitling the employer to dismiss the
employee immediately, and secondly the employee must have wilfully or with
gross negligence engaged in the conduct in question. Burdett argued that
the Employment Tribunal had not engaged with this second element.
Furthermore, he argued that there had been an assumption that dismissal
would necessarily fall within the range of reasonable responses in a gross
The Employment Appeal Tribunal agreed the Tribunal should have considered whether there were mitigating circumstances that might take dismissal outside the range of reasonable responses and because it had apparently failed to do so, it made its decision unsafe.
As regards the disability angle, having identified the legitimate aim of
setting appropriate standards in the workplace, the Tribunal had failed to
demonstrate that it had scrutinised whether dismissal would achieve that aim
– no critical evaluation of the possible alternative means open to the
employer that might have been less discriminatory had taken place. In
particular, the Employment Appeal Tribunal felt they had not considered
whether working from home was a possibility. They felt that the employer’s
justification was punitive rather than preventative.
On an online commentary that I saw on this case, one reader had commented “I find this baffling. Perhaps someone cleverer than me can explain how discontinuing medication without medical advice did not amount to gross negligence?” I must admit I agree with this commentator – unfortunately sometimes our Judges do appear to be somewhat divorced from the reality of the workplace. I would ask those Judges whether or not they would want their wives or sisters to have to work alongside this individual.
This case is a salutary lesson for employers that they need to be sure, when
dealing with these sorts of difficult situations, that they articulate
themselves very carefully – meeting minutes or notes taken by the decision
maker perhaps setting out their thought processes should address the issue
of whether there are facts to support a genuine belief that the employee is
wilfully engaged in the act of misconduct that they are claiming is so
serious that it repudiates the employment contract, that there has been a
careful consideration of any mitigating factors, particularly where there is
a disability, giving reasons why a lesser penalty than dismissal is not
going to be appropriate and evidence that the sanction was a reasonable
response, given all the circumstances. This might mean spelling out that a
particular employee’s attitude in a disciplinary hearing suggests to you
that they are not going to mend their ways and that you fear repetition of
an incident. You may also need to articulate why you feel that a lesser
sanction won’t be a reasonable response, giving all the circumstances – in
this case I would have thought that the signal being sent to other staff
about certain kinds of conduct would be a very important factor. When it
comes to defending discrimination claims it is important to show that you
have looked at whether there is any less discriminatory way of achieving the
aims that you need to.