Employer fails to consider employee's disability before dismissal

The Employment Tribunal (ET), in the case of Muir v Astra Zeneca UK Ltd, had to decide whether the respondent had fully considered the claimant’s disability and the effect it had before taking the decision to dismiss.

Facts

Concerns of bullying and harassment were informally made against the claimant, who had depression and anxiety, regarding the wording of emails and because they raised their voice when interacting with colleagues. There was not an issue with the content of what was said, but the way in which the claimant said it.

An investigation was carried out which was then followed by a disciplinary hearing during which it was noted that the claimant’s “…inability to stay calm was limited”. The claimant was ultimately dismissed for gross misconduct and the way in which the claimant behaved in the disciplinary hearing was noted as being a material factor in the decision. Whilst the claimant appealed this decision, the original outcome was upheld.

The claimant then brought claims for unfair dismissal, wrongful dismissal/notice pay, and discrimination arising from a disability.

Employment Tribunal

The ET found that during the discussions with colleagues, whilst they were about work, the claimant conducted themselves in a forceful way. The medical evidence confirmed that the claimant’s underlying stress and inability to manage uncertainty resulted in the claimant behaving in this way with colleagues. The ET, therefore, concluded that the claimant was dismissed because of their behaviour which was linked to their disability. The discrimination arising from a disability claim was successful.

How do I know if something is a disability?

The unfair dismissal claim was considered next by the ET. It found that the reason for dismissal was ‘conduct’ which is a potentially fair reason. They then had to decide whether the dismissal was fair in all the circumstances.

Even though the investigating officer interviewed several witnesses, the ET did not accept that the investigation was thorough. This was because no further enquiries were made regarding the claimant’s mental health, despite concerns being raised about the claimant’s state of mind by colleagues. At the disciplinary stage, and on appeal, there was again a failure to consider that the claimant’s disability could have affected their behaviour. The ET, consequently, did not accept that the decision to summarily dismiss was a sanction that was within the range of reasonable responses and so, the unfair dismissal claim was also successful. This meant that the wrongful dismissal claim also succeeded because the claimant was entitled to notice pay that they had not receive when they were dismissed for gross misconduct.

Do I have to hold an investigation meeting?

The case will now proceed to a remedy hearing for a decision on the amount of compensation the claimant is entitled to because of the ET’s findings.

What we do know, however, is that in relation to the unfair dismissal claim there will be an uplift of 10% to the award because of the respondent’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. When the claimant appealed the decision, the appeal chair decided to meet with the disciplining officer on two occasions, without the claimant knowing, before the appeal hearing was held. The ACAS Code states that the appeal should be impartial. Whilst the appeal chair was not previously involved in the disciplinary process, the meetings held with the disciplinary chair meant that the appeal was no longer impartial.

Who provides the evidence in a disciplinary appeal hearing?

Takeaway points

This case is a useful reminder that if there is an underlying condition, careful consideration must be given to whether it could be linked to the alleged misconduct. It is also a good illustration that the ACAS Code applies all the way through the process, including the appeal stage.