The recent case of Brighton v Tesco Stores highlights the caution employers have to take when instigating a dismissal procedure for disabled employees.

The case was in regard to an employee of Tesco Stores, Mr Brighton, who was diagnosed with epilepsy which amounted to a disability.

On the occasion in question, the employee had acted violently towards a colleague at work, shouting, invading her personal space and stamping on the floor. His doctor advised him that he might have an epileptic seizure due to stress; the employee was signed off sick. He never returned to work as he dismissed because of his behaviour. At the time of the incident which led to his dismissal he already had a final written warning on his file. He claimed unfair dismissal.

At the Employment Tribunal (ET), Brighton presented three letters from his Consultant Neurologist which stated that he had had an epileptic episode on the day of the incident, which meant that he could not recall the events. The Neurologist wrote that aggression and amnesia can certainly be experienced as part of a seizure or as a result from it. Brighton contended that because of this he could not be held responsible for his actions. The ET dismissed this evidence as it was thought it was “self-generated” due to being based on facts which Brighton himself had told the Neurologist. As a result the ET found that Brighton had not been unfairly dismissed. He appealed claiming that the ET inadequately dealt with the medical evidence he had provided and the judgment did not explain why it was rejected.

The Employment Appeal Tribunal (EAT) held that although the ET is not bound to accept any medical evidence presented before it, they should consider and give it due regard. It said that failure to take into account important evidence, that of a Consultant Neurologist, undermines the Employment Tribunal’s decision that the Claimant did not suffer a seizure. The EAT ruled in favour of the appeal, as it held it is not objectionable for a doctor to give an opinion on information he has from his patient and remitted the case to a new Employment Tribunal for it to be reconsidered.