Burdett v Aviva Employment Services – Unfair dismissal, culpability and disability article banner image

This is an interesting and, thankfully, very unusual set of circumstances, involving Mr Burdett, a paranoid schizophrenic, who attacked colleagues at work and was dismissed by Aviva for gross misconduct. Mr Burdett’s mental illness meant he was protected as a disabled person under the Equality Act 2010. Prior to his dismissal, he pleaded guilty to the charges and was sentenced, being made subject to a mental health treatment programme for three years. After the criminal proceedings had been completed, Aviva took medical advice and held the disciplinary hearing. The claimant admitted that he had carried out the alleged sexual assaults and admitted that he had chosen to discontinue medication without medical advice. He was dismissed for gross misconduct.

The Employment Tribunal originally found that Aviva had fairly dismissed the claimant in the circumstances, despite there being very little investigation. Mr Burdett appealed to the Employment Appeals Tribunal (EAT) who found that in fact he had been unfairly dismissed.

Previous case law has established that for conduct to fall into the category of “gross misconduct”, it must be a deliberate and wilful breach of the contract or amount to gross negligence.

The Facts

Mr Burdett started working with Aviva in 2006 and after a spell of sick leave for depression, he was diagnosed with a paranoid schizophrenic illness. On medical advice on 2008 he stopped taking his medication but was readmitted to hospital when he assaulted two members of the public. He received a police caution but did not tell his employer about this.

In 2010, the claimant once again stopped taking his medication, but this time he did not seek medical advice in advance. He later sexually assaulted two female colleagues and threatened to assault a male security guard. He left the building and assaulted a member of the public and attempted to assault another, then being detained under the Mental Health Act 1983 and charged with criminal offences.
Aviva suspended the claimant pending investigation and found out about the previous assaults. When they questioned him, Mr Burdett admitted that the assaults did take place but explained:

“I made a serious error of judgment, I thought I was best placed to decide the level of antidepressant medication I took…I was wrong.”

The EAT decided that the admission of guilt was not enough for the employer to decide the claimant was guilty of gross misconduct. They had failed to consider his ‘culpability’, saying that the company should have considered whether Mr Burdett had committed the misconduct wilfully or in a grossly negligent way. The original judgment mentioned his “error of judgment” but the EAT felt that not enough attention was given to this issue. Because of this, it could not make the decision that he was culpable for acts of gross misconduct.

It may come as a surprise that the EAT did not agree that this case was so heinous that dismissal was within the band of reasonable responses!

The key lessons for employers in this case are that gross misconduct requires culpability on the part of the person committing the acts and, with mentally ill employees, employers need to tread carefully to establish whether they are truly culpable. Employers should take into account the employee’s mitigating circumstances as well as the needs of the business when deciding whether dismissal is a reasonable response.

It may be that if the company had dealt with this differently (for example as a capability issue rather than misconduct, the outcome would have been different).

Certainly in another similar case, the EAT found that a disabled claimant had not been unfairly dismissed because the safety of other employees was paramount. The EAT said it was important to carry out the necessary balancing exercise (between the claimant’s interests and those of the business). This indicates that the issues are extremely complex and that no two cases are likely to be the same. So employers should seek legal advice before taking any actions to dismiss employees with mental impairments for gross misconduct.

The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To this or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk