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EAT rules that ET should have considered whether an employer’s failure to probe the impact of an employee’s depression and medication rendered the dismissal process unfair

Makbool Javaid, Partner - Simons Muirhead & Burton

In Daley v Vodafone Automotive Ltd Chris Daley had been working at Vodafone Automotive UK when he got into an argument with a member of the firm’s IT department. The colleague complained that Mr Daley had been offensive, threatening, intimidating and had sworn at him during the argument.  Vodafone commenced an investigation and the result was that Mr Daley was dismissed for gross misconduct.

Mr Daley lodged an appeal.  He did not accept that he had behaved inappropriately.  However, he also disclosed (for the first time) that he had been suffering from severe depression since April 2017.  He explained that he took strong medication to help manage his condition, and that both the depression and the medication caused side effects including anger, frustration, irritability and anxiety.

However, Vodafone rejected the appeal.  As far as his depression was concerned, Vodafone noted that Mr Daley had not raised this during either the investigation or disciplinary hearing.  Nor was Vodafone on notice of his condition (and they said there was nothing which should have alerted them to it) at the time the decision to dismiss was taken.  Vodafone also referred to an “off the record” discussion that Mr Daley had had with a member of HR in which he was alleged to have said: “if I had known it would have come to this, I would have hit him”.  However, Mr Daley was not given an opportunity to make representations about this matter during the appeal process.

Mr Daley brought a claim for unfair dismissal.  The Employment Tribunal found that the decision to dismiss was fair, but the failure to allow Mr Daley to respond to the “off the record” comment rendered the appeal process unfair.  However, it went on to find that this would have made no difference to the overall outcome and so no compensation award was made.

Mr Daley appealed to the Employment Appeal Tribunal. Mr Daley argued that the appeal process was flawed because Vodafone should have investigated his mental health and medication, and the possible impact on his behaviour.   Medical advice should have been sought and consideration should have been given to whether it amounted to a mitigating factor.  Mr Daley argued that the Employment Tribunal failed to deal with this point when considering the quality of Vodafone’s investigation.

The EAT agreed with Mr Daley.  A new Tribunal will now have to consider whether Vodafone ought to have conducted these further investigations before rejecting Mr Daley’s appeal against his dismissal.  If a Tribunal decides that they should have done so, and this would have made a difference to the overall outcome, then the issue of compensation will have to be revisited.

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