Employees with more than two years’ service may only be fairly dismissed by their employer for one or more of the following reasons:
- illegality; or
- some other substantial reason (a “catch all” to allow an employer to dismiss when none of the other potentially fair reasons apply).
In addition to having such a potentially fair reason, employers need to follow a fair procedure leading up to dismissal if they want to minimise the risk of unfair dismissal claims.
In order to be both fair and reasonable when dismissing an employee due to misconduct, during all stages of the disciplinary procedure (i.e. the investigation, the disciplinary hearing and the appeal), employers should take account of all the circumstances surrounding the misconduct, including any potentially mitigating factors.
In a recent case, Daley v. Vodafone Automotive Ltd EA-2020-000314-JOJ, the Employment Appeal Tribunal (EAT) held that Vodafone should have investigated the impact of the employee’s mental health and medication even though this was only raised by him at the appeal stage. His health and the medication he was taking were potentially important mitigating reasons for his misconduct.
Vodafone Automotive Limited (the Company) employed Mr Daley as a warehouse supervisor. A colleague made a complaint against Mr Daley for offensive, threatening, intimidating behaviour and use of abusive language. After an investigation, the Company concluded that Mr Daley had committed gross misconduct and he was summarily dismissed.
During Mr Daley’s appeal against his dismissal, he disclosed that he had been suffering with severe depression for more than a year before the incident and was taking strong anti-depressants prescribed to him by his doctor. Some of the side effects associated with his medication were cognitive impairment and anger issues. The Company considered Mr Daley’s medical condition but decided that the evidence available did not warrant further investigation into the impact/effect of Mr Daley’s mental health issues/medication on the misconduct.
The Company upheld Mr Daley’s dismissal as it became known that Mr Daley had made an “off the record” comment to HR that he would have hit his colleague if he had known the argument would have resulted in his dismissal (the Hitting Allegation). The Hitting Allegation had not been put to Mr Daley during the appeal process and therefore he did not have the opportunity to answer it before the dismissal was upheld.
The Employment Tribunal
The Employment Tribunal (ET) criticised the Company’s appeal process as unfair as Mr Daley had not been given the opportunity to respond to the Hitting Allegation. It considered that failing to put this to Mr Daley for his answer was a procedural failing and it rendered the investigation outside the range of reasonable investigations. However, Mr Daley was not awarded any compensation as the ET found that the Hitting Allegation was a corroborative piece of evidence. If the Company had put this allegation to him, he would have been dismissed fairly and it would not have made any difference to the outcome.
The Employment Appeal Tribunal
Mr Daley appealed to the EAT. The EAT agreed with the ET that the disciplinary process was unfair, but for a different reason. It believed the unfairness stemmed from the Company’s failure to investigate Mr Daley’s mental health and medication as a relevant factor.
The case has been passed to another employment tribunal to consider whether, had the Company carried out further investigations into Mr Daley’s mental health during the appeal, this would have resulted in a different outcome.
If the ET concludes that this further investigation would have made a difference to the outcome, the issue of compensation will need to be reconsidered.
This case demonstrates the importance of carrying out a fair and thorough investigation, at all stages of a disciplinary process and particularly when investigating violent or threatening behaviour. If potentially mitigating factors, such as mental health or prescription medication use, come to light at any stage of the dismissal process, employers should investigate the information thoroughly and consider what they believe to be a reasonable outcome in light of that information.