Employers are entitled to dismiss staff for gross misconduct – but what if that conduct is caused or contributed to by mental illness? The Employment Appeal Tribunal (EAT) addressed this issue in the case of a senior NHS manager who behaved out of character when suffering from bipolar disorder (Wheeley v University Hospitals Birmingham NHS Trust).

The woman reacted to what was described as minor restructuring of her department by sending a series of inappropriate emails to the medical director of the NHS trust for which she worked. After her suspension, she attended the medical director's home uninvited in an attempt to discuss her grievances. Following a disciplinary process, she was summarily dismissed for gross misconduct.

After she launched proceedings, an Employment Tribunal (ET) found that she had been guilty of gross insubordination on a grand scale. Despite her long service and clean disciplinary record, dismissal would, ordinarily, have been well within the band of reasonable responses open to a reasonable employer.

The ET ruled that her dismissal was unfair and amounted to an act of disability discrimination because it had emerged during the disciplinary investigation that she was suffering from bipolar disorder at the relevant time. The disciplinary panel had before it medical evidence that she was in the hypomanic phase of the condition when she sent the threatening and insubordinate emails.

The ET found that her condition had a significant impact on her actions, which thus arose because of something in consequence of her disability. However, it went on to rule that she was not blameless and that she bore 25 per cent of the responsibility for her dismissal on the basis that she would probably have responded inappropriately even had she not been suffering from bipolar disorder.

In upholding her appeal against that aspect of the ET's ruling, the EAT noted that she had plainly been suffering from a serious psychiatric illness. The ET had failed to objectively assess the extent of her blameworthiness and had given inadequate reasons for determining the level of her contributory fault at 25 per cent. That issue was sent back to the same ET for fresh consideration.

For advice on handling unfair dismissal claims, contact Emma-Louise Hewitt or Samantha Glynn on 0808 166 8860 or email them on e.hewitt@sydneymitchell.co.uk / S.Glynn@sydneymitchell.co.uk

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