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:
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.