The recent case of Bodis v. Lindfield Christian Care Home Limited considered the dismissal of Ms Bodis, and whether the decision to dismiss her was discriminatory, where the decision was partly influenced by actions caused by Mrs Bodis's disability.
In this case, the claimant suffered from depression and anxiety. As we have discussed in previous blogs, depression and anxiety will not always amount to a disability, but in this case they did.
The respondent was a care home, and during the course of the claimant's employment there were a number of strange incidents such as paper towels being stuffed down the staff lavatories, displays damaged or information removed, CQC reports being soaked in water on two occasions, oil from a reed diffuser being poured onto desks, keyboards, laptops and, radiators, vandilisation of posters, and defacing of photographs of female staff to add facial hair. The incidents were so frequent and so unusual that from November 2018 the respondent started to record a log of them. By February 2019, the incidents were traced back to the claimant.
The claimant was accused of gross misconduct, and called to a disciplinary hearing. The claimant's conduct at the hearing was a contributing factor to the decision to dismiss her. She did not offer any alternative explanation for the events, but she denied that she was the culprit. Her answers were short, and unhelpful.
The respondent analysed the evidence and found that on the balance of probabilities the claimant was likely to be guilty. The panel considering the claimant's dismissal decided that her behaviour was inappropriate, that the incidents had upset other members of staff and that the employment relationship had totally broken down. The claimant’s conduct in the disciplinary process, including her short answers to questions was also a contributing but minor factor in the decision. She was summarily dismissed for gross misconduct in March 2019. She did not choose to appeal.
The claimant brought claims for unfair dismissal and disability discrimination. The discrimination was that the claimant suffered with depression and anxiety which amounted to a disability. Her short and unhelpful answers and conduct during the disciplinary process were behaviours arising from the disability.
The respondent accepted that the claimant's behaviour during the disciplinary process was a contributing factor to their decision to dismiss her.
The Employment Tribunal at first instance said that the claimant's behaviour during the disciplinary process was only a "trivial" influence on the decision to dismiss her and not the "effective cause" of the decision. Therefore the decision did not arise from the conduct which was caused by her disability, and accordingly there was no allegation of disability discrimination upheld.
However, the Employment Appeal Tribunal disagreed. The EAT stated that something arising from a disability can be only a minor component of the reason for the treatment or detriment. In this case it was accepted by the respondent that:-
- the claimant was disabled
- that her conduct likely arose from her disability
- that her conduct during the disciplinary process was a contributing factor to the decision to dismiss her.
The fact that it was only a contracting factor and a minor one did not mean that a claim of discrimination had not been made out by the claimant. However, the claimant's claim for the discrimination ultimately failed because the EAT confirmed that the Tribunal had made it clear that the respondent's decision to dismiss the claimant was justified in any event.
Employers should however take heed that any factor contributing to a decision to dismiss where the conduct is arising from a disability risks being discriminatory. Factors relating to an employees disability should be excluded so far as possible from any decision taken about any disciplinary action, to avoid claims for disability discrimination.
Should you have any queries about conducting disciplinary investigations, or anything else raised in this article, please contact a member of our Dispute Resolution team on 01494 521301.