Facts are vital in dismissals

MARIE ALLEN, employment law solicitor at Gotelee & Goldsmith, highlights the need to investigate the facts before dismissing for misconduct

IN ANY any case involving misconduct, an employer is required to show that, at the time of dismissal, it had a reasonably and genuinely held belief, following a reasonable investigation, that the employee was guilty of the misconduct in question.

Failure to do so is likely to result in the dismissal being held to be unfair, notwithstanding the nature of the misconduct in question.

In City of Edinburgh Council v Dickson, Mr Dickson was employed as a community learning and development worker based at the community wing of a school. He had type-one diabetes, which was inadequately controlled by medication, putting him at risk of hypoglycaemic episodes. There is evidence that during a hypoglycaemic episode a person can behave out of character and have no recollection of their actions.

The council received a complaint that Mr Dickson had been seen using a school computer to watch pornographic images. He was immediately suspended. A disciplinary investigation revealed that, on that day, Mr Dickson had also visited a magazine website containing inappropriate sexual images.

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Mr Dickson accepted that the evidence appeared to support the allegations but argued that he had no recollection of either incident and that his behaviour must have been a result of his diabetes.

Before the disciplinary hearing, the council’s HR adviser asked his wife, a pharmacist, whether his condition could explain his actions. She said no. However, notes were produced by the council’s occupational health doctor which indicated that Mr Dickson’s behaviour could have been caused by a hypoglycaemic episode.

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At the hearing, Mr Dickson’s union representative produced information from the Internet about the effects of hypoglycaemia, including personality change, amnesia, cognitive impairment and automatism. However, the hearing manager rejected Mr Dickson’s explanation, concluding that his actions were “conscious and deliberate”. Mr Dickson was summarily dismissed. Having appealed unsuccessfully, he brought claims for unfair dismissal and disability discrimination.

The employment tribunal upheld Mr Dickson’s unfair dismissal claim. Mr Dickson’s explanation had been rejected without any proper investigation of the evidence about his medical condition.

Furthermore, the opinion of an uninformed third party had been taken into account in preference to that of the council’s occupational health doctor who had actually examined him.

Employers need to undertake an impartial and objective investigation into the facts of each case and, where appropriate, consult with the employee and obtain independent medical advice.

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