Michael Hardiman: Is an employee’s disability a defence to an act of misconduct?

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Can disability be used to defend broken rules ?

An employee’s explanation for alleged misconduct at work can sometimes be taken by employers to be a version of events which simply beggars belief. As a result, employers are often tempted to dismiss an employee without giving due consideration to the employee’s side of the story. This article highlights the risk of this approach where an employee relies on a disability to explain or excuse the alleged misconduct giving rise to the disciplinary hearing.

Key issues for employers

Employers are faced with a difficult situation when an employee argues that their act(s) of misconduct are a result of or because of their disability.  In such circumstances, there are often two opposite approaches – either employers ignore the explanation or, in the alternative, totally excuse the employee’s behaviour on the basis that the employee suffers from a disability and, therefore, it would be too risky to dismiss. The problem with the latter approach, however, is that this potentially sets a precedent which limits an employer’s options in the event of similar misconduct by the same or other employees in the future.

A prime example of the problem faced by employers is demonstrated by the case of City of Edinburgh Council v Dixon EAT 0038/09.  In that case, the Employment Appeal Tribunal (EAT) held that the dismissal of an employee for watching pornography on a school computer was unfair.  The employee had argued that his uncharacteristic behaviour was the result of a hypoglycaemic episode caused by his diabetes.  The Council simply dismissed the explanation and relied upon incorrect (and non-medical) advice from their HR advisor that a hypoglycaemic episode could not result in out of character behaviour.  The EAT found the dismissal to be unfair and took the view that the Council should have investigated further and gained a better understanding of the medical condition and the impact of such hypoglycaemic episodes before dismissing the employee.

A key point for employers to consider where an employee raises their health condition as a defence to their misconduct is whether or not medical evidence is required to determine if the condition could have contributed to, or caused, the behaviour in question.

What about capability?

A further consideration in circumstances where an individual raises their health condition as the reason for their inappropriate behaviour is to consider whether or not the matter should be treated as misconduct or if, in fact, the behaviour is such that it calls into question the employee’s ability to carry out their role.

In the Edinburgh Council case detailed above, if the Council had investigated the employee’s actions and determined that they were so extreme that it was unreasonable for him to return to his post or there was evidence to suggest that the inappropriate behaviour may reoccur, the Council may have been entitled to dismiss the employee for capability rather than conduct reasons, provided that a fair procedure was followed prior to dismissal.

It is therefore important in circumstances where the employee’s health condition may have contributed to acts of misconduct that specific questions are asked of a medical professional to determine whether or not the behaviour is likely to reoccur or whether there are any ways in which the behaviour can be prevented or controlled.

What if the employee refuses to undergo examination or treatment?

A common problem faced by employers is where the employee refuses to undergo a medical or occupational health examination.  Employers are often side tracked by such a refusal and potentially fall into the trap of dismissing the employee for refusing to undergo the medical examination.  Such a dismissal is likely to be unfair, especially where the employer does not have the contractual power to insist that the employee attends a medical appointment.

However, where an employee exhibits performance or behavioural problems at work and refuses to undergo an examination, the employer is entitled to base its decision on the information which it does have available to it.  It therefore follows that in circumstances where an employee alleges that their ill-health was the cause of their behaviour if they then refuse to allow the employer to investigate that explanation by obtaining medical evidence this will severely damage the credibility of the employee’s argument.

Conclusions and Implications

Tribunals have, on numerous occasions, stressed that there is no legal principle which lays down procedures for dealing with health conditions and with problems arising out of an employee’s conduct.  In each case, the question of whether the employer acted

reasonably will depend on the circumstances and it is important to consider each case on its own facts so as to avoid the risk of an employee bringing claims of unfair dismissal and/or discrimination arising from their disability.

Some practical tips for dealing with these situations include:

  • Where an employee raises an actual or potential disability as the reason for their behaviour, employers would be well advised to consider obtaining medical evidence as to the nature of the condition and the impact that this may have on the employee’s behaviour or conduct at work.
  • When obtaining medical evidence, the employer should ask specific questions of the medical professional to determine the nature of the condition, the impact upon the employee’s behaviour, whether or not the behaviour will reoccur and whether or not the condition is likely to worsen or improve.
  • When reviewing medical evidence, consideration should be given as to whether or not the matter should proceed as a conduct disciplinary or on the basis of the employee’s capability to carry out the role moving forward.
  • In all cases, a fair procedure should be followed and documented so as to evidence a full investigation into the employee’s explanation has taken place.

The above will assist employers in ensuring that a disability-related explanation for misconduct is properly investigated before any potential dismissal.

By ensuring such an investigation takes place the employer will be in a far better position to rebut arguments relating to the employee’s medical condition should the matter subsequently proceed to an Employment Tribunal.

Michael Hardiman is an employment law specialist advising both companies and individuals on the full spectrum of employment law issues. Michael offers practical advice on the numerous issues that arise in day to day HR practice with a view to ensuring that the client’s desired outcome is achieved as quickly and effectively as possible. He regularly advises clients on disciplinary and grievance issues, terminating employment, and dealing with discrimination complaints and Employment Tribunal claims.

About Robert Leeming

Robert joined the HRreview editorial team in October 2015. After graduating from the University of Salford in 2009 with a BA in Politics, Robert has spent several years working in print and online journalism in Manchester and London. In the past he has been part of editorial teams at Flux Magazine, Mondo*Arc Magazine and The Marine Professional.
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