Conduct and disability

November 20th, 2014 by James Goudie KC

Was there gross misconduct?  If there was, did it justify dismissal?  Those were issues before Judge Eady QC in Burdett v Aviva Employment Services Ltd, UKEAT/0439/13/JOJ, a case concerned with both unfair dismissal and discrimination arising from disability.  The employee had committed assaults in the workplace.  However, this was because of his disability.  He suffered from a paranoid schizophrenic illness.  The ET was judged to have been in error in finding gross misconduct.  They had failed to engage with the question of blameworthiness.  The ET was also found to have been in error in assuming that dismissal will necessarily fall within the range of reasonable responses in a gross misconduct case.

In addition, the ET had failed to demonstrate that it had properly scrutinised the proportionality of the means chosen by the employer to achieve the legitimate aim of adherence to appropriate standards of conduct in the workplace, namely dismissal.  There had been no critical evaluation of possible alternative means, in particular home-working, and whether dismissal was no more than was necessary.  The ET’s conclusion on the discrimination arising from disability claim under Section 15 of the Equality Act 2010 could not be upheld as safe.

The case does not break new ground in terms of legal principles.  However, there are some useful restatements:-

“31.  … if an employer dismisses for a reason characterised as gross misconduct, the Employment Tribunal will need to determine whether there were reasonable grounds for the belief that the employee was indeed guilty of the conduct in question and that such conduct was capable of amounting to gross misconduct (implying an element of culpability on the part of the employee). Assuming reasonable grounds for the belief that the employee committed the act in issue, the Tribunal will thus still need to consider whether there were reasonable grounds for concluding that she had done so wilfully or in a grossly negligent way.”

“32.   Even if the Employment Tribunal has concluded that the employer was entitled to regard an employee as having committed an act of gross misconduct … that will not be determinative of the question of fairness.  The Tribunal will still need to consider whether it was within the range of reasonable responses to dismiss that employee for that conduct.  The answer in most cases might be that it was, but that cannot simply be assumed. …”

“78.       The task of the ET was to scrutinise the means chosen by the Respondent as against such other alternatives that (on the evidence) might have been available to achieve the aim in question.  In so doing, it was required to weigh in the balance the discriminatory impact of the measure chosen against such other alternatives open to the employer.”

Judge Eady QC’s concluding remarks were as follows:-

 “85.       This was a difficult case for all involved. The Claimant has plainly suffered a series of life events and a serious illness that have been catastrophic for him. For its part, the Respondent was faced with an unusual set of circumstances which required a sensitive balancing exercise between its obligations of fairness to the Claimant and its duty of care to its employees more generally. In such cases, it can be all the more important that Tribunals take care to fully set out the reasons that have led to their conclusions. It is trite law that parties are entitled to understand how a Tribunal has reached its Judgment (why they have won or lost). Where the balancing exercise raises issues of particular complexity and sensitivity, it is especially important that the reasons provided are clear, so that parties are not left trying to piece together an explanation for the Judgment or second guess whether the Tribunal has had regard to a particular point. In this case, I am not satisfied that this has been done, both as regards the unfair dismissal or the discrimination arising from disability claims.”

James Goudie QC

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