Teal blue graphic

A very fine line: culpability for gross misconduct when suffering a mental illness

When can an employee be dismissed for gross misconduct for behaviour in connection with his mental illness? In September we reported on Hensman v Ministry of Justice where the Tribunal considered an employer's decision to dismiss an employee with Asperger's Syndrome for gross misconduct. In Burdett v Aviva Employment Services Ltd the Employment Appeal Tribunal (EAT) has made a finding that the employment tribunal did not properly consider the issue. 

The facts

Mr B had been diagnosed with paranoid schizophrenia and was disabled under the Equality Act. In 2008 he stopped taking his medication upon his doctor's advice and then sexually assaulted members of the public. He was given a police caution which he kept secret from his employer.

In 2010 he again stopped taking his medication, but without medical advice. In April 2011 he sexually assaulted two female colleagues, threatened to assault a security guard, assaulted a female member of the public and attempted to assault another. He was arrested and detained under the Mental Health Act and received criminal charges. 

Following Mr B's sentencing in April 2012, the employer's disciplinary proceedings resumed and Mr B admitted "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." He was dismissed for gross misconduct. Following unsuccessful appeals, he brought claims for unfair dismissal and disability discrimination. 

Employment tribunal's decision

The Tribunal found that the employer was entitled to dismiss Mr B for gross misconduct. They determined that Aviva had reasonable grounds for the dismissal as Mr B had admitted to stopping his medication and had been found guilty of the assaults. As for discrimination, the tribunal found that the dismissal was a proportionate and necessary means for the employer to achieve a legitimate business aim to maintain standards in the workplace and safeguard employees. Mr B appealed.

Employment Appeal Tribunal

The EAT determined that the underlying reason for the dismissal was the sexual assault along with the decision to stop taking his medication. There were not reasonable grounds to believe that Mr B had committed gross misconduct, as an admission of guilt to stopping his medication was not sufficient to constitute gross misconduct. Gross misconduct requires culpability and the Tribunal should have considered whether there were reasonable grounds to conclude that Mr B had committed misconduct wilfully (or in a grossly negligent way). To answer this query, they would need to take his mental illness into account. 

The EAT found that the Tribunal had not properly analysed the issue and so was wrong to conclude that Mr B was guilty of gross misconduct. The Tribunal had not considered the mitigating circumstances, or why Mr B had stopped taking the medication. As to discrimination, in weighing up the discriminatory impact on Mr B, the Tribunal had failed to consider alternatives (ie working from home). The Tribunal had also failed to provide clear reasons for reaching its decision.

The EAT allowed Mr B's appeal and invited the parties to make further representations as to what should happen next. 

Points to note

This case is similar to the facts of Hensman v Ministry of Defence which we reported on in September however the outcome was different as in that case, the protection of employees was viewed as paramount. 

It is important to remember that gross misconduct requires culpability. Where mental illness is involved the employee's blameworthiness must be considered particularly carefully. Dismissal may not always be the appropriate sanction and the employer should weigh up any mitigating circumstances of the employee's mental health issues alongside the business's needs. 

The fact that two similar cases have been decided differently shows that these are difficult cases which are often solely dependant on the particular facts of the case. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

Insights & events View all