EAT Unfair Dismissal – Conduct – Section 98(2)(b) Employment Rights Act 1996
In a case where the Claimant had committed (admitted) assaults in the workplace because of his disability (he suffers from a paranoid schizophrenic illness), the ET found that the Respondent had dismissed him because of his having committed acts of gross misconduct and that it had reasonable grounds for its belief in this regard given the Claimant’s admission. The admission was, however, limited to the acts in question; not to actual culpability. The ET’s reasons did not demonstrate engagement with the issue of blameworthiness on the Claimant’s part; whether he had in fact wilfully or grossly negligently engaged in the conduct in question (Sandwell and West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09/LA) and, in the circumstances of this case, that amounted to an error of law (Eastland Homes Partnership Ltd v Cunningham UKEAT/0272/13/MC).
Further, the ET’s reasons suggested that it had fallen into the error identified by the EAT (Langstaff P presiding) in Brito-Bapabulle v Ealing NHS Trust UKEAT0358/12/1406; apparently assuming that dismissal will necessarily fall within the range of reasonable responses in a gross misconduct case. There was no indication that the ET had found that this was such a heinous case as to allow of no explanation or mitigation. That being so, it was the ET’s function to consider whether there were mitigating circumstances that might take dismissal in this case outside the range of reasonable responses. Its apparent failure to do so rendered its conclusion unsafe.
Discrimination Arising from Disability – Section 15 Equality Act 2010
Having identified the legitimate aim as being adherence to appropriate standards of conduct in the workplace, the ET failed to demonstrate that it had properly scrutinised the means chosen by the Respondent to achieve that aim (i.e. the dismissal of the Claimant), Hardys and Hansons plc v Lax [2005] IRLR 726, CA. There was only limited consideration of the impact upon the Claimant and no critical evaluation of the possible alternative means apparently open to the Respondent (in particular, home-working). Furthermore, the justification identified by the ET (which was retributive rather than preventative) did not seem to engage with the Respondent’s legitimate aim and, to the extent that it found that there was a risk of relapse even if the Claimant continued on his medication, its finding as to future risk lacked evidential basis. In the circumstances, the ET’s conclusion on the discrimination arising from disability claim could not be upheld.
Outcome
Appeal allowed. Parties afforded the opportunity to make further representations as to disposal.
Eady QC HHJ
[2014] UKEAT 0439 – 13 – 1411
Bailii
Employment Rights Act 1996 98(2)(b)
England and Wales
Employment
Updated: 23 December 2021; Ref: scu.538838
