By Alan Lewis, Employment Law Expert.
I have specialised in employment law for over 25 years. Throughout my career I have been asked to provide advice to both employers and employees in relation to whether an employee’s stress, anxiety or depression should be considered in the context of dismissal for misconduct, particularly in circumstances where the employee claims that the conduct was in part caused or contributed to by their illness.
A typical scenario may be where an employee accused of misconduct claims that they were not ‘thinking straight’ or indeed that their behaviour was ‘out of character’, caused by stress or issues with mental health. Whenever this scenario occurs, the primary consideration is to obtain medical evidence as part of the disciplinary investigation. This is because a failure to obtain such evidence would be likely to make any dismissal unfair. Furthermore, such evidence may reveal that an employee is suffering from a condition that would be classified as a disability in accordance with the provisions of the Equality Act 2010.
A significant number of claims of disability discrimination involve employees who suffer from anxiety and depression. If an employee’s anxiety and depression has a substantial and adverse impact on their ability to concentrate, particularly if this would be the case if they were not taking medication, and their condition has lasted for 12 months or is expected to last for 12 months, then their illness would be classed as a disability.
In such circumstances, if an employee was able to link their misconduct or behaviour to the symptoms of their illness, then they would be able to establish that any dismissal was an act of potential disability discrimination contrary to section 15 of the Equality Act, which makes unlawful any unfavourable treatment because of something arising in consequence of a disability.
An employer would then have to objectively justify their decision to dismiss the employee. It is much harder for an employer to satisfy this test than it is to defend a claim for unfair dismissal. It is important to note that compensation for disability discrimination can often be far greater than compensation in unfair dismissal claims, because there is no statutory cap on the level of compensation that can be awarded in a disability discrimination claim whereas there is a statutory cap in claims for unfair dismissal.
The Court of Appeal have ruled, in the case of City of York Council V Grosset, that provided an employee can link their misconduct/behaviour to their disability, they could pursue a disability discrimination claim even if their employer did not know that their disability caused the misconduct. In that case a teacher was suffering stress as a result of a disability he suffered. During the period that he was suffering from stress he showed an 18 rated film to a class of 15 year olds without the school’s approval or parents’ consent. He claimed that his judgement had been affected as a result of the stress he was suffering from. The Court of Appeal upheld his claim for disability discrimination on the basis, amongst other matters, that the employer could not objectively justify its decision to dismiss the teacher having regard to the background circumstances and in particular the fact that his conduct had been caused or contributed to by his disability.
I have been involved in a number of previous cases where similar arguments have arisen. There are also a number of other reported Employment Tribunal decisions in this area which both employers and employees should be aware of.
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