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Blameworthiness for misconduct not always clear-cut where the employee is mentally ill

In Burdett v Aviva Employment Services Ltd an employment tribunal decided that Burdett,who suffers from a paranoid schizophrenic illness,was fairly dismissed for gross misconduct because he had admitted to sexually assaulting female colleagues after discontinuing his medication without medical advice.

In Burdett v Aviva Employment Services Ltd an employment tribunal decided that Burdett,who suffers from a paranoid schizophrenic illness,was fairly dismissed for gross misconduct because he had admitted to sexually assaulting female colleagues after discontinuing his medication without medical advice. The tribunal found the dismissal to be fair because of Burdett’s admission. The tribunal also rejected Burdett’s claim for discrimination arising from disability under S.15 of the Equality Act 2010, as in its view, the dismissal was a proportionate means of achieving the employer’s legitimate business aim of setting appropriate standards of conduct within the workplace. The EAT upheld Burdett’s appeal on the rejection of his unfair dismissal and disability discrimination claims.

Burdett’s admission was purely limited to committing the sexual assaults; not to his actual culpability. For the definition of gross misconduct to be satisfied, two conditions must be met, i.e. (i) the misconduct must be so serious that it repudiates the contract, entitling the employer to dismiss immediately; and (ii) the employee must have wilfully or grossly negligently participated in the conduct in question. The tribunal had not addressed the issue of blameworthiness on Burdett’s part and was an error of law. In addition, the tribunal appeared to have fallen into the error of assuming that dismissal automatically falls within the range of reasonable responses in a gross misconduct case. There was no indication that the tribunal had found that this was such an atrocious case as to allow no explanation or mitigation. Therefore the tribunal should have considered whether there were mitigating circumstances that might take dismissal in this case outside the range of reasonable responses and its failure to do so rendered its conclusion unsafe.

The tribunal also erred in rejecting the discrimination arising from disability claim. Having identified the legitimate aim as being adherence to appropriate standards of conduct in the workplace, the tribunal failed to show that it had properly scrutinised the means chosen by the employer to achieve that aim, i.e. Burdett’s dismissal. There was only limited consideration of the impact upon Burdettand no critical evaluation of the possible alternative means apparently open to the employer, and in particular, home-working. Furthermore, the justification identified by the tribunal, which was punitive rather than preventative, did not seem to engage with the employer’s legitimate aim and, to the extent that it found that there was a risk of relapse even if Burdett continued on his medication, its finding as to future risk lacked evidential basis.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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