Case - BURDETT V AVIVA EMPLOYMENT SERVICES LTD

UKEAT/0439/13/JOJ, Employment Appeal Tribunal - Jane McNeill QC

The Employment Appeal Tribunal (EAT) handed down judgment in this case on 14 November 2014.  Jane McNeill QC represented the successful Appellant.

The Claimant in this case was dismissed for gross misconduct after he admitted to a number of sexual assaults, both within and outside the workplace.  He suffers from paranoid schizophrenia and the assaults occurred as a result of his having ceased to take his medication.

He brought claims, inter alia, for unfair dismissal and discrimination arising from disability pursuant to section 15 of the Equality Act 2010.  The Employment Tribunal (ET) dismissed his claims finding that his conduct plainly amounted to gross misconduct and that dismissal was always a reasonable sanction for gross misconduct: “quite clearly, any Respondent, given the nature of the misconduct, would have invoked a sanction of dismissal”. On the Section 15 claim, there was no issue that dismissal was unfavourable treatment.  It was held that there was a legitimate aim of “adhering to appropriate standards of conduct in the workplace”, which was “necessary to ensure the safety of the Respondent’s employees” and that dismissal was a proportionate means of achieving that aim.

The EAT (HHJ Eady QC, sitting alone) accepted the submissions of Ms McNeill QC, on behalf of the Appellant, in relation to the dismissal that (i) the ET (and indeed the Respondent) had erred in finding that the Claimant had committed gross misconduct, without considering whether the conduct in question was wilful or grossly negligent (reference was made to Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09); and (ii) the ET had erred in finding that dismissal necessarily fell within the range of reasonable responses where gross misconduct was made out, which was contrary to Brito-Bapabulle v Ealing NHS Trust UKEAT/0358/12. On the question of sanction, the EAT rejected the submission that the case fell into the exception in Polkey v Dayton Services Ltd [1988] ICR 142, HL, where the offence was “so heinous and the facts so manifestly clear that a reasonable employer could… take the view that no explanation or mitigation could alter the decision to dismiss.”

On the section 15 claim, the EAT found that the ET had conflated the pleaded aim of protecting staff with a second aim of showing its other employees it was taking a serious approach to the Claimant’s behaviour, without acknowledging this discrepancy or adequately weighing the Claimant’s interests against either. Furthermore, the ET had not properly considered the possibility of home-working, which had been part of the Claimant’s case. HHJ Eady QC said that “where the balancing exercise raises issues of particular complexity and sensitivity, it is especially important that the reasons provided are clear”. In this case, they were not.

Disposal remains to be determined.

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