Case Law: Disability not considered during disciplinary

 

advo hr looks at recent case law regarding a bank manager whose medical condition wasn’t taken into account during a disciplinary in which he was dismissed. We take a closer look at where the employer went wrong and highlight the need to consider any health issues when contemplating applying any sanction.

A bank manager who has type 2 diabetes was dismissed for gross misconduct as a result of accidentally locking a customer in branch. Diabetes is classed as a disability under the Equality Act 2010. The former employee’s condition worsened with stress, poor diet and lack of regular breaks. Due to restructures, closure of local branches and staffing issues, the bank manager was unable to take regular breaks to eat and therefore couldn’t control his diabetes. His symptoms physically affected him, which included his ability to concentrate at work.

A few months before the incident, the claimant was informed that there was no longer a role for him as a result of the restructure: he was formally put at risk of redundancy two months after he was informed he would be made redundant.

The incident where the customer was locked in branch was investigated and it was found that there were other occasions where security procedures were not adhered to. Examples included leaving keys in the door and not checking all the rooms before locking up. At the disciplinary hearing, it was found that the bank manager had breached security policies and was dismissed on these grounds.

The employee appealed this decision on the grounds that he was being treated more severely than others who had been in the same situation and that they had not considered how stress negatively affected his health.

The claimant therefore took the Company to an Employment Tribunal which concluded that the decision to dismiss was unfair. This was because the investigator was aware of the employee’s medical condition, but didn’t take this into consideration. The Company also did not suspend the employee during the investigation which highlighted that his actions, deemed as gross misconduct, could not have been serious if they were happy for him to continue working in a position of responsibility.

The judge explained that the Company’s decision was disproportionate to the incident and explained that it would have been more proportionate, for example, to have referred the employee to occupational health to help the employee manage his diabetes and to give the employee a final written warning with training. At the employment tribunal the Company explained that they did not see that his health condition and stress would have affected security protocols.

The Company had to pay the claimant £49,457 for injury to feelings and loss of earnings that he would have earned, before his role would have been made redundant.

It is clear from the above case law that employers who are investigating and potentially applying a disciplinary sanction to someone who has a disability under the Equality Act 2010 need to be certain that they have considered how this condition affects the employee in the workplace. Companies also need to ensure that they are responding in an appropriate manner which is proportionate to the offence.

If you have a disciplinary issue or have an employee off with an illness which may impact them at work and you would like further advice please get in touch with advo hr.You can email cgregory@advogroup.co.uk 

 

 
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