Dismissing a disabled employee for gross misconduct found to be unreasonable

In the case of Asda Stores Ltd v Mr D Raymond, the Employment Appeal Tribunal (EAT) were tasked with determining whether a disabled lorry driver was subjected to unreasonable disciplinary action and discrimination after urinating in his employer’s delivery yard.

The driver in this case, Mr Raymond, suffered from type 2 diabetes which includes amongst its symptoms the sudden need to urinate. On one such occasion when returning to his employers premises the employee felt a sudden need to urinate and, fearing that he would be unable to reach to toilet facilities in time, proceeded to urinate in the delivery yard.

The employee’s actions were captured on CCTV and a disciplinary investigation took place, during which the employee admitted to the act and expressed his apologies. Following this, and the realisation that Raymond had urinated near a loading bay which could have potentially contaminated food pallets, Asda proceeded to dismiss him for gross misconduct citing wilful neglect of company property, breach of health and safety regulations and the potential for reputational damage.

Raymond exercised his right to appeal the dismissal with his employer and produced evidence that his medical condition was the reason for his actions. However, Asda refused to investigate this further and proceeded to dismiss his appeal. In response the employee decided to bring claims for unfair dismissal and discrimination arising from a disability to an employment tribunal (ET).

Upon reviewing the evidence, the initial employment tribunal upheld Raymond’s claims. They determined that the employer erred in failing to specify which health and safety regulations he had breached, as well as failing to conduct a reasonable investigation into the incident. Importantly it was determined that the CCTV footage used did not clearly show that Raymond had urinated on food pallets, as Asda had supposedly claimed.

The ET went on to add that a reasonable employer would have made appropriate enquires into the employee’s medical conditions and considered that his disability may have caused the sudden need to urinate. As Asda failed to take these steps it was ruled that Raymond had been subject to discrimination arising in consequence of a disability.

Asda decided to appeal this decision to the Employment Appeal Tribunal (EAT), however the EAT dismissed the appeal and agreed with the findings of the original ET. The EAT held that the whole process had been tainted by the employer’s unreasonable response to the issue and that the CCTV footage used did not provide sufficient evidence for a gross misconduct dismissal.
The employer’s failure to further investigate Raymond’s medical condition, or consider how this could impact his actions, proved a decisive factor and that it was unreasonable to claim that mutual trust and confidence has been breached in a situation where the employee’s disability was an operative cause of dismissal.

From an employer’s perspective this case offers a useful reminder of the important of completing a full and reasonable disciplinary investigation before deciding to dismiss an employee, including taking note of any new evidence brought up during an appeal. Extra care should be taken when an employee has a pre-existing medical condition that could qualify as a disability, as dismissing someone for misconduct that occurs as a direct result of their disability is likely to amount to disability discrimination.

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