And The Law Says

Misconduct Dismissals and Mental Health Issues

December 10, 2014


(Burdett v Aviva Employment Services Ltd)

Mr Burdett was employed by Aviva in 2006 as a Senior Approval Specialist. In 2007 and following a period of absence for depression, Mr Burdett was referred to Aviva’s Occupational Health team who confirmed that he was suffering from a depressive paranoid schizophrenic illness.

He was prescribed anti-depressant and anti-psychotic medication and was a disabled person for the purposes of the Equality Act 2010. In 2008, on medical advice, Mr Burdett stopped taking his medication. As a consequence he was re admitted to hospital after having hallucinations and sexually assaulting members of the public. He received a police caution for his offences. He did not let his employer know about any of this.

In 2010 Mr Burdett again stopped taking his medication but on this occasion it was of his own volition and not on the advice of medical practitioners. In the early part of 2011 he sexually assaulted two female employees, threatened to assault a security guard and when he left the premises assaulted a female member of the public and threatened to assault another. He was arrested and detained under mental health legislation.

Aviva suspended Mr Burdett pending an investigation. During the course of the investigation they found out about the caution that Mr Burdett received in 2008. Of the allegations put to Mr Burdett, he accepted that he carried out the assaults and stated:

“I made a serious error of judgment, I thought I was best placed to decide the level of antidepressant medication I took…I was wrong”.

Aviva adjourned the hearing and sought further medical evidence. Following receipt of this and conclusion of the criminal trial (which resulted in a requirement for mental health treatment) the disciplinary was re-convened. The outcome was Mr Burdett’s dismissal. Concerns were raised by Aviva that Mr Burdett could stop taking his medication at any point and that he did not disclose the incident from 2008. Mr Burdett made an unsuccessful appeal and subsequently brought proceedings in the employment tribunal for unfair dismissal and discrimination arising as a consequence of his disability. Both claims were dismissed by the employment tribunal. Mr Burdett appealed and the EAT found:

  1. The tribunal was correct in finding that the reason for dismissal was the acts of sexual assault together with Mr Burdett’s decision to stop taking his medication. The EAT did not agree that Aviva had reasonable grounds for believing that Mr Burdett was guilty of the allegations. The EAT stated that to be guilty of gross misconduct there had to be culpability, either a deliberate wrong doing or gross negligence. The EAT found that the tribunal had failed to consider whether Mr Burdett’s decision to stop taking his medication was ‘grossly negligent’ and was therefore wrong to conclude that Aviva had reasonable grounds to believe he was guilty of gross misconduct.
  2. The tribunal did not consider mitigating circumstances such as why Mr Burdett had stopped taking his medication. They also stated that this was not a case where a finding of gross misconduct would automatically lead to a sanction of dismissal.
  3. In respect of the discrimination element that the tribunal had not considered whether dismissal was proportionate. Mr Burdett had proposed an alternative of home-working and the tribunal did not consider this in their judgment. Neither did they consider other alternatives available to Aviva to make their decision to dismiss proportionate.

Stephen Calderbank Says: In this case the EAT were critical of the tribunals failure to provide clear reasons for reaching its decision. Nevertheless, it is a useful reminder of the need for employers to tread carefully when dismissing employees. Employers can adopt the view that gross misconduct automatically leads to dismissal. As this case reminds us, there are further considerations that need to be had. Always consider mitigating circumstances put forward by the employee and any particular circumstances that may be relevant. In this case, had the employer asked why Mr Burdett had stopped taking his medication, they could likely have accurately concluded that stopping them does amount to gross negligence. Leaving stones unturned casts that shadow of doubt. In dismissal letters remember to state whether the allegations amount to a deliberate wrong doing or an act of gross negligence.

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