Misconduct caused by illness or disability – employers beware

March 21st, 2022

Harassment remains a significant problem in a number of workplaces. Although the forms in which it takes place ranges, it is an issue that employers are constantly tackling in everyday situations.

Sexual harassment is often highlighted in the media. However, a recently reported case has certainly raised eyebrows.  This involved a Sainsbury’s worker who had been reported to be sexually harassing other members of staff.

The reports included claims of him groping female colleagues and making inappropriate suggestive comments. It is said that he called one of his colleagues a ‘yummy mummy’ and asked for her phone number, whilst another reported that he had referred to another as ‘Bin Laden’s mistress’. He was also accused of calling female colleagues ‘b***h’ and ‘w***e.

Mr Kelly, who had been an employee at Sainsbury’s for 20 years, was dismissed for gross misconduct and sexual harassment. Mr Kelly took the case to an Employment Tribunal claiming unfair dismissal and disability discrimination. One might be forgiven for thinking he didn’t really stand much of a chance in winning his claim and even the Judge hearing his case commented that it was “very obvious” that an employer could not have a worker behaving in the way he did.

However, Mr Kelly was successful in establishing his dismissal was both unfair and an act of disability discrimination.  The reason?  His employers failed to properly investigate and take sufficient account of whether his behaviour was linked to a medical condition that turned out to be a disability.

Four years into Mr Kelly’s career at Sainsbury’s, he was involved in a serious road traffic incident which left him in an induced coma for a month. Once he returned to work, months later, his managerial career came to a halt as he was unable to continue training due to the memory loss problems caused by the accident.

The Tribunal ruled in Mr Kelly’s favour, hearing that Sainsbury’s had failed to take into consideration the head injury he suffered that may have caused his inappropriate behaviour following this. Without considering a 2011 report from a psychologist, it suggested that Sainsbury’s did not appear to acknowledge the fact that Mr Kelly’s behaviour may have been an attributing factor caused from his head injury. The Judge commented that it was apparent on the evidence that Mr Kelly’s behaviour was not normal behaviour and one would have thought any person seeing that Mr Kelly behaved in this way would recognise there was something not quite right and that something must be causing him to behave that way.

Now Mr Kelly is awaiting compensation from the company.

In the writer’s experience, this type of scenario can crop up pretty regularly.  The lesson for employers is always to properly investigate the background to an employee’s misconduct and be wary if such conduct could be related to a disability.

You can read more about the effects and implications of this here.

For more information

Our Employment team have a wealth of experience in previous situations and matters that have involved similar arguments over the years. We are ranked as a leading firm in the Legal 500 and the writer has been consistently ranked as a leading individual in employment law.  With a combined experience of over 50 years, our team at Linder Myers are able to support both Employers and Employees in any situation where legal assistance is required.

If you have a query or would like further information on harassment in the workplace, you can reach out to our team by filling in the contact form below. Alternatively, you can contact us on 0800 042 0700 for honest and impartial advice from a member of the team.

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