Some forms of workplace behaviour that constitute misconduct may appear beyond dispute, but the truth is not always obvious and employers are obliged to carry out full and fair investigations. That point was strikingly made in a case concerning a lorry driver who was overcome with a desperate urge to relieve himself due to the diabetes from which he suffers (Asda Stores Limited v Raymond).

The driver had worked for Asda Stores Limited for 15 years. He suffers from uncontrolled diabetes mellitus, so is disabled for the purposes of the Equality Act 2010. Whilst making a delivery to an Asda store, he was caught short as he climbed out of his cab. Realising that he could not wait until he reached the men's room, he tried to find a discreet part of the yard in which to relieve himself. His actions were caught on CCTV and, in due course, an investigation took place. The driver was embarrassed and apologetic but, after he frankly admitted what he had done, he was dismissed for gross misconduct without the manager who dealt with the matter investigating further.

In upholding the driver's unfair dismissal claim, an Employment Tribunal (ET) found that the initial investigation of the incident was neither impartial nor fair. After he admitted urinating in public, the view was taken that no further investigation as to why he had done so was required. The inadequacy of the inquiries made was not cured by the subsequent disciplinary process. His employer had not sought to rationalise why summary dismissal was reasonable, but had instead regarded it as a 'fait accompli'. In the ET's view, Asda did not have a genuine and reasonable belief that he was guilty of gross misconduct. A belief will only be reasonable if the employer can show that they had in mind reasonable grounds upon which to sustain it, having carried out as much investigation into the matter as was reasonable at the time the belief was formed. In the circumstances, dismissal did not lie within the range of options reasonably open to the employer.

In also upholding the driver's disability discrimination claim, the ET noted that he had made Asda aware that he suffers from diabetes mellitus in official documentation relating to night working. His employer therefore knew or could reasonably be expected to have known that he had the disability, and a desperate and uncontrollable urge to urinate is a recognised symptom of the condition. On the balance of probabilities, it was his medical condition that had led to his predicament.

The ET directed the driver's reinstatement and awarded him £5,000 for injury to feelings.

In challenging the ET's decision, Asda argued that the CCTV footage clearly showed the driver urinating on pallets used for the delivery of customers' shopping. The ET's failure to find as much led to fatally flawed reasoning throughout its ruling and a perverse conclusion. Furthermore, the ET had substituted its own views of the driver's misconduct for those of the employer.

In dismissing the appeal, however, the Employment Appeal Tribunal rejected Asda's plea that the evidence that the driver had urinated on the pallets was incontrovertible. The ET's finding that the operative cause of the act of urination was his disability was not challenged and there was simply no basis for the perversity and substitution mindset arguments. The ET's conclusion that trust and confidence between the employer and the driver was capable of being restored, thus enabling the latter's reinstatement, was also faultless.

When disciplinary proceedings are carried out, they must be fair, take account of the relevant facts and not be tainted by preconceived opinions. Getting it right at the outset can prevent issues arising at a later stage saving you time and money. Contact Emma-Louise Hewitt on 0808 166 8827 for advice on how to deal with any disciplinary matter. Or email

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