It’s Friday which means its time for another dose of case law. This week’s case covers ill health dismissals, duty of care and disability discrimination.

The question this week is:

Can a mentally ill employee be fairly dismissed if their conduct towards co-workers breaches an employer’s duty of care towards them?

Mr Agbakoko, the Claimant, was employed by Allied Bakeries, the Respondent, and worked in their warehouse. The Claimant was good at his job but the Respondent received complaints from other employees about how the Claimant behaved towards them. He received a final written warning and was then off work with stress.

The Respondent then received a letter from an NHS nurse regarding the Claimant’s mental health. The Claimant was sent to the Respondent’s occupational health advisor who said that the Claimant had suffered a psychiatric episode but medication meant they were coping well. Despite this the Claimant was deemed to be disabled.

The Claimant returned to work and began training to drive forklift trucks. During the training’s medical assessment it became apparent he had stopped taking his medication. He was then involved in an altercation with other employees which led to further complaints regarding his conduct. When the Respondent learned that the Claimant had stopped taking his medication they were advised by occupational health that he should be suspended from forklift truck driving. The Claimant was put on paid leave.

The Claimant denied that he had any mental illness and was suspended on health grounds whilst an investigation was carried out. The Claimant was dismissed and as the Respondent believed that regardless of his mental health his conduct put other employees at risk.

The Claimant’s appeal to be reinstated was rejected but the Respondent then received a report from the Claimant’s psychologist stating that he did indeed have a history of mental illness and had been sectioned. The Respondent’s occupational health advisor stated this justified the decision to dismiss on safety grounds as the condition meant his conduct was unlikely to cease.

The Claimant initiated legal proceedings and claims for unfair dismissal and disability discrimination were heard by the Employment Tribunal (ET). The ET said that the Respondent’s disciplinary process had been procedurally unfair because they had not obtained evidence clarifying the Claimant’s mental health nor explored the possibility of redeploying the Claimant elsewhere in the business.

However, as there were no alternative roles (other than forklift truck driver) and the medical evidence only strengthened their reason to dismiss the ET ruled the dismissal fair. It also rejected the claim for disability discrimination as the Respondent did not have confirmation of the Claimant’s disability when they dismissed him and the decision to dismiss was because the Claimant’s conduct put other employees in danger. The same decision would have been reached if the Claimant had not had a disability.

The Claimant appealed this decision but the EAT dismissed the appeal as it believed the ET had been correct in stating that whilst the disciplinary process was unfair the decision it reached was not.

To answer today’s questions

Yes, it is fair to dismiss an employee who has a mental illness if their conduct breaches your duty of care to other employees. However if there is a suitable role that the employee could move to that would not endanger other members of staff then the dismissal may be unfair.

It is also worth noting that many employers fall foul on mental illness and disability when it comes to employment law. Likewise it is unlawful to discriminate against an employee who has had a disability in the past but has since recovered.

To read a similar case concerning discrimination and duty of care click here.

Or, to read our previous Case of the Weeks on disability discrimination please click here.