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Gross Misconduct Linked To Disability – A Complex Issue

21 May 2019

Before dismissing an employee who has committed gross misconduct, it is essential that employers carefully consider whether the misconduct may have been caused by a disability.

Failure to do so could result in an expensive and time consuming disability discrimination claim.

For example, in one case an employee who suffered from a paranoid schizophrenic illness was dismissed for sexually assaulting female colleagues and members of the public after discontinuing his medication without medical approval. Whilst an employment tribunal rejected his discrimination claim, on appeal the Employment Appeal Tribunal (EAT) disagreed with the tribunal’s reasoning and held that it had failed to consider whether the employee’s mental illness meant that he was not to blame for the misconduct.

Although an employer will be able to successfully defend such a claim if it can show that it did not know (and could not reasonably have been expected to know!) that the employee had a disability, employers should be aware that this also includes information which only comes to light at the appeal stage.

In a recent EAT case, an employer dismissed an employee for poor performance during a probationary period and the employer did not know about the employee’s disability (depression) at the time of dismissal. However it was told about the health issue at the appeal hearing and it was therefore held that the dismissal could still be discriminatory. The EAT confirmed that an appeal is an integral part of the decision therefore, when considering whether the employer had knowledge of the employee’s disability, it is relevant to consider what it knew (or ought to have known) at any appeal. This means that an employee is not penalised if they feel unable or unwilling to mention their disability until an appeal hearing. It is therefore essential that both appeal hearing officers and disciplinary hearing officers are trained to identify and deal with such issues.

It is also worth noting that an employer cannot defend such a claim on the basis that it did not know that the misconduct arose from the disability.

For example in one case, a senior English teacher at a school suffered from cystic fibrosis. Following a change of head teacher, his workload increased and, as a result of his condition, he struggled to cope with the additional demands placed on him. The teacher suffered stress, which in turn exacerbated his cystic fibrosis. During this period, he showed 15 and 16-year-olds the 18-rated film ‘Halloween’ during lessons. As a result he was suspended and eventually dismissed for gross misconduct. He claimed that he had suffered discrimination arising from disability and (although his unfair dismissal claim failed) his discrimination claim was upheld even though the medical evidence available at the time of dismissal did not suggest a link between the misconduct and the disability.

Gross Misconduct

Unfortunately for the employer, the medical evidence which was available by the time of the tribunal hearing did demonstrate a link and the employer was held liable for discrimination arising from disability, even though it reasonably concluded on the evidence at the time that there was no link between the employee’s actions and the disability. Therefore there may be cases where an employer has to decide between giving an employee “the benefit of the doubt” that their unacceptable behaviour was a consequence of their disability, or risk a claim against them.

However medical evidence can still be key to an employer’s defence.  For example, in another case, a paramedic with a history of entonox (laughing gas) abuse, was signed off work with depression anxiety. While off sick, he visited the Ambulance Station in the early hours, and following an investigation, he was dismissed for, among other things, visiting the station with the intent of misappropriating entonox. The paramedic brought a discrimination arising from disability claim before a tribunal, but this was unsuccessful as the medical evidence did not support that his actions were an effect of his depression.

Finally, it is worth noting that a factor taken into account by the tribunal in the teacher case above was that, if the employer had met its obligation to make reasonable adjustments and had reduced the work pressure on the teacher, it would have been unlikely that the film incident would have occurred.

Therefore as well as carefully considering whether misconduct may have been caused by the disability before taking a decision to dismiss, consideration should also be given to whether the employer’s acts or omissions may have been a contributing factor in the first place.

Our training service – HR Showcase – provides practical guidance to help key personnel in a business make stronger decisions and help minimise the risks inherent in managing a workforce. For details on our training or support any employment issue, please contact our Employment Team on 0191 232 8345.