An employee sexually assaults female colleagues and threatens a security guard. He is charged and found guilty of criminal assaults. In disciplinary proceedings he admits the assaults and it comes to light that he already has a police caution for a previous sexual assault.
There would appear little doubt that an employer in this situation could safely dismiss for gross misconduct. However what if the assaults were as a result of the employee failing to take certain medication?
A recent case* has highlighted that in this type of situation where an employee’s misconduct has been caused by a medical condition an employer may not necessarily be acting fairly when deciding to dismiss.
The facts in the case involved an employee who had, as a result of a depressive illness, been prescribed antidepressant and antipsychotic medication. All the assaults had occurred during periods when he had stopped taking this medication.
The employer’s obvious concern was that there was a risk that he could choose to stop taking his medication at some point in the future and on that basis concluded that the only appropriate sanction was summary dismissal for gross misconduct.
The claims for unfair dismissal and disability discrimination were dismissed by an Employment Tribunal. It held that the employer had reasonable grounds for its belief that the employee was guilty of gross misconduct and that dismissal was clearly within the band of reasonable responses given the seriousness of the misconduct. The dismissal was not unlawful discrimination either as dismissal was ‘objectively justified’. It was a proportionate and necessary means of achieving the legitimate business aim of maintaining appropriate standards of conduct in the workplace and safeguarding other employees.
However, the employee’s appeal succeeded on two important grounds. Firstly, it found that the employee’s admission of guilt did not constitute an admission of gross misconduct. Whilst he had admitted carrying out the assaults what should have still been considered was whether his actions had been deliberate. Gross misconduct required a finding that the employee has been culpable so, at the least, he needed to have carried out the misconduct wilfully or in a grossly negligent way. Given his mental illness this was by no means certain.
Secondly, in relation to discrimination, dismissal would only be justified if it was a proportionate means of achieving the legitimate aim. In assessing what was proportionate the employer had to carry out a balancing exercise, weighing up the discriminatory impact on the employee of the method chosen i.e. dismissal against the other available means. The option of home-working that the employee had suggested should have been explored further.
The case highlights the sometimes complex issues that an employer may face when an employee alleges that the misconduct in question is related to a disability. Employers should ensure that in every case they:
- investigate to establish if there is a connection between the conduct and the disability
- assess what, if any, sanction would be appropriate
- balance the impact of the sanction on the employee against the need to achieve the legitimate aim always taking into account whether there are alternative means of achieving this.
*Burdett v Aviva Employment Services Ltd