Unfair Dismissal Due to a Disability
Unfair dismissals relating to employee disabilities could result in employers being pursued in lengthy and expensive employment tribunals. As an employer, you may believe that you have a clear-cut case for dismissal – however, you must be careful before making any assumptions. If the case has not been fully investigated, this could result in a successful claim to the employment tribunal. In this case it was found to be an unfair dismissal due to a disability.
In this article, we look at a case where a high-profile employer unfairly dismissed an employee for an incident relating to a disability.
Asda Stores Ltd v Raymond
An Asda employee, Mr Raymond, was dismissed for urinating in a loading yard, which was agreed to be unfair and arising from this person’s disability. The employee in question had type 2 diabetes, which was overlooked during the investigation.
Asda was aware that the employee suffered from type 2 diabetes, however, the disciplinary panel did not explore this point in any detail. Instead, Asda’s focus was on “his conduct in the loading yard” which they decided “amounted to a serious breach of health and safety regulations, as well as a serious and wilful neglect of company property”.
When asked by Mr Raymond about the specific policy or provision he had breached, the disciplinary officer responded, “it’s the general policy included in the contract – it’s an illegal act by law, you can be arrested for it unless you’re pregnant”. In response, Mr Raymond explained that he had been “overcome by a desperate and uncontrollable urge to urinate” and then mentioned his diabetes.
When conducting an investigation, employers should be aware of any factors that would be vital in determining the outcome of a case – in this case, a disability that could have a direct effect on the employee’s actions and behaviour which was later found to be an unfair dismissal due to a disability.
Claiming under s.15 of the Equality Act
Asda decided that the employee had committed an act of gross misconduct. Mr Raymond decided to appeal against his summary dismissal, but he was unsuccessful, so he then brought a claim under s.15 of the Equality Act that his dismissal arose from his disability and was, therefore, an unfair dismissal.
The tribunal noted the following points about the investigating officer:
- He had not visited the scene of the incident, only viewing CCTV footage;
- He conducted one interview with Mr Raymond and there was, “no further investigation” (his own words);
- He had not explored any medical reasons why Mr Raymond had urinated, and he had not obtained any medical evidence.
Therefore, in the tribunal’s view, the investigation had not been fair or impartial. The tribunal then noted the following points about the disciplinary hearing and the disciplinary officer:
- He had relied on the investigating officer’s report;
- He had not familiarised himself with the specific policy or provision that it was alleged Mr Raymond had breached.
The tribunal concluded that the evidence for Mr Raymond urinating on pallets was not supported and this was a case of unfair dismissal. Each case must be taken on the facts and evidence available; personal views should not be allowed to cloud the judgement of the disciplinary officer.
Disability Discrimination Claim
The tribunal decided that Mr Raymond’s diabetes was the cause of his dilemma on the day of the incident. As Mr Raymond had given a full account of his uncontrollable urge to urinate, the tribunal decided that Mr Raymond’s dismissal “amounted to unfavourable treatment that arose in consequence of his disability”. Asda decided to appeal to The Employment Appeal Tribunal (EAT).
However, the EAT responded by saying that the charge against Mr Raymond was that he had breached health and safety regulations and seriously or wilfully neglected company property, and it was not only about urinating in the yard or on any pallets.
The EAT’s view was that if Asda had been genuinely concerned about a serious breach of regulations, they would have known “what provisions were being breached in order to know how serious the charge was”. Therefore, a critical issue was the lack of any reasonable investigation – Asda had taken “no reasonable care at all” during the disciplinary process. The EAT upheld the tribunal’s ruling that “his dismissal arose from his disability” and dismissed the appeal.
What are the implications for employers?
As an employer, you must be able to show that the misconduct in question was sufficient to justify a dismissal. A fair misconduct dismissal involves carrying out an impartial and thorough investigation.
- Always fully explore the issue from the claimant’s perspective, as well as obtaining any relevant medical evidence.
- Take all necessary steps in an investigation, even if this requires a delay to the process – for example, the requirement to obtain a GP report.
- Ensure that you have followed a reasonable and fair disciplinary procedure at all times.
If you need guidance on procedures relating to misconduct, unfair dismissal and disability matters, then please call us on 01455 231982 or send an enquiry via our contact page.