The Employment Appeal Tribunal (EAT) overturned a tribunal's decision that an employee who was a paranoid schizophrenic was fairly dismissed for gross misconduct when he sexually assaulted female colleagues after stopping his medication without medical advice. (Burdett v Aviva Employment Services Ltd UKEAT/0439/13)
The Law
Section 98(2)(b) of the Employment Rights Act 1996, provides that a dismissal is potentially fair if it relates to the employee's conduct.
When considering whether conduct amounts to gross misconduct, an employer should bear in mind that:
- The conduct must be so serious that it goes to the root of the contract, that is, the conduct must be repudiatory, entitling the employer to dismiss with immediate effect and;
- The conduct must be a deliberate and wilful breach of the contract or amount to gross negligence.
Under section 15(1) of the Equality Act 2010 (EqA 2010), "discrimination arising from disability" occurs where:
- An employer treats an employee unfavourably because of something arising in consequence of that person's disability; and
- The employer cannot show that the treatment is objectively justified as a proportionate means of achieving a legitimate aim.
The Facts
Mr Burdett started working for Aviva Employment Services Ltd ("Aviva") in 2006.
In 2007, after a period of sick leave due to stress and depression, Mr Burdett was referred to Aviva's Occupational Health team where it was confirmed that he suffered from a paranoid schizophrenic illness and required antidepressant and antipsychotic medication.
Mr Burdett was a disabled person within the meaning of section 6(1) of the EqA 2010.
In 2010, Mr Burdett stopped taking his medication and antidepressants without taking medical advice.
In April 2011, Mr Burdett sexually assaulted two female employees, and threatened to assault a security guard. He also assaulted a female member of the public and attempted to assault another. He was arrested and detained under the Mental Health Act 1983 and faced criminal charges in respect of the assaults.
Aviva suspended Mr Burdett pending investigation for the sexual assaults and during the course of the investigation discovered that Mr Burdett had received a police caution for sexual assault in 2008 having discontinued his medication. In responding to the allegations Mr Burdett accepted that the incidents of April 2011 did take place but explained his conduct as follows:
"I made a serious error of judgment, I thought I was best placed to decide the level of antidepressant medication I took...I was wrong".
A disciplinary hearing was held in January 2012 and adjourned pending further medical information. Medical reports were obtained by Aviva seeking reassurance and guarantees that Mr Burdett would continue to take his medication in the future. These could not be provided by the medical practitioners.
In April 2012, Mr Burdett was sentenced in relation to the assaults in April 2011, to which he pleaded guilty and was made the subject of a mental health treatment requirement for three years.
Following the criminal sentence, and in receipt of further medical evidence, Aviva resumed the disciplinary hearing in May 2012. The disciplining manager expressed his concern over the undisclosed assault of 2008 and the risk that Mr Burdett could stop taking his medication at some point in the future concluding that the "only sanction given the gross misconduct admitted was dismissal".
Mr Burdett’s Claims in the employment tribunal
Mr Burdett brought claims in the employment tribunal for unfair dismissal and discrimination arising from a disability.
The employment tribunal dismissed his claims holding that Aviva had been entitled to dismiss Mr Burdett for gross misconduct. Given Mr Burdett's admissions to the sexual assaults and to discontinuing his medication, Aviva had reasonable grounds for its belief. The tribunal concluded that dismissal was within the band of reasonable responses for misconduct of this serious nature.
In relation to discrimination arising from disability, the parties accepted that Mr Burdett had been subjected to unfavourable treatment because of something arising in consequence of his disability. However, the tribunal held that dismissal was a proportionate means for allowing Aviva to achieve its legitimate business aim of maintaining appropriate standards of conduct in the workplace and safeguarding its employees.
Mr Burdett appealed to the EAT against both of these findings. The EAT allowed the appeal in relation to both claims.
The EAT Decision
- Unfair Dismissal
Gross misconduct requires culpability.
It was not sufficient for a tribunal to accept that an admission of guilt constituted an admission of gross misconduct as the latter required culpability on the part of Mr Burdett.
It was necessary for the tribunal to consider whether there were reasonable grounds for the belief that Mr Burdett had committed the misconduct wilfully or in a grossly negligent way and this would need to take account of his mental illness.
The EAT felt the tribunal gave little thought to whether Mr Burdett's "serious error of judgment" relating to his medication could amount to wilful or grossly negligent. Without this analysis, the tribunal was wrong to conclude that Mr Burdett had committed gross misconduct.
In considering whether dismissal was the correct sanction in these circumstances regard had to be given to mitigating circumstances including consideration as to why Mr Burdett had stopped taking his medication.
- Discrimination arising from disability
A critical evaluation of the objective justification for dismissal was required by the tribunal.
The EAT agreed that the legitimate aim identified by the tribunal was adherence to appropriate standards of conduct in the workplace. However, a balancing exercise, weighing up the discriminatory impact on the employee against the other available means was required of the employer.
The employment tribunal had to assess how the employer had carried out the balancing act.
The tribunal's reasons for deciding that dismissal was objectively justified did not appear to relate to Aviva's legitimate aim, but rather to the aim of showing that it was taking a serious approach to Mr Burdett's actions and the safety of its employees.
The EAT concluded that the tribunal's reasons did not show that it had considered the alternative of home-working in the context of future risk or otherwise considered the alternative means available to Aviva in achieving its legitimate aim.
An overall criticism of the tribunal's judgment was the failure to provide clear reasons for reaching its decision, which in a complex case concerning sensitive issues was even more essential.
The Key points to remember:
- Gross misconduct requires culpability on the part of the employee
- Culpability must be evaluated very carefully and particularly so when dealing with a mentally ill employee.
- Dismissal may not be the appropriate sanction in all cases and alternatives to dismissal must be considered.
- Employers must take the mitigating circumstances of an employee’s mental health into account alongside its business needs.
- In relation to discrimination arising from disability a balancing exercise between the discriminatory effect on the employee and the legitimate aim(s) of the employer must be carried out.
If you have any queries relating to this or any other Employment matter please contact our Employment team on the number above. Alternatively, please complete our online enquiry form.
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