The claimant, Alistair Dickson, was employed by Edinburgh Council as a community learning and development worker. Dickson had had type 1 diabetes for more than 30 years, and was disabled within the meaning of the Disability Discrimination Act 1995.
In June 2007, the council received a complaint that Dickson had been seen viewing pornographic material on his computer. In response to that complaint, the council suspended Dickson and asked him to attend a disciplinary hearing.
At the hearing, Dickson alleged that he had no recollection of viewing the indecent images and that his conduct and lack of memory were caused by a hypoglycaemic episode relating to his type-1 diabetes. Dickson said his condition had not been properly controlled in recent years and that it had been exacerbated at the time of the incident by a mis-prescription of insulin.
The council rejected Dickson’s explanation and dismissed him for gross misconduct. Dickson issued claims for unfair dismissal and disability discrimination.
Both of Dickson’s claims were successful. The employment tribunal held the council had failed to “engage with” Dickson’s defence and that it would have been accepted if it had been properly considered. Further, the tribunal held that Dickson’s dismissal amounted to disability discrimination.
The tribunal ordered that Dickson be reinstated and that he be paid £25,000 by way of compensation. The council appealed.
The Employment Appeal Tribunal (EAT) agreed that Dickson’s dismissal had been unfair and that his reinstatement was appropriate. The EAT held that the council had failed to take proper steps to understand Dickson’s explanation or the medical evidence available in support of that explanation. The EAT said that if the council had undertaken a proper investigation, it probably would not have made the decision to dismiss Dickson and, as such, reinstatement was fair.
Applying the House of Lord’s decision in Lewisham v Malcolm, the EAT overturned the tribunal’s decision that Dickson’s dismissal amounted to disability discrimination. The EAT held that the council’s rejection of Dickson’s explanation was not due to the fact that he was disabled (or for a reason related to his disability) but was because they did not believe him. The EAT said that it was necessary that the disability should be (at least part of) the reason for that rejection for it to amount to discrimination.
The decision is confirmation for employers that a full and thorough investigation must be followed prior to any decision to dismiss. Even where an employee’s explanation seems unlikely, employers cannot reach that conclusion unless they have considered all the evidence available to them, and their decision is based on that evidence. The EAT was particularly scathing of the council’s decision to rely on incorrect advice from their HR adviser that a hypoglycaemic episode could not result in out of character behaviour.
The case demonstrates that while ignoring a disability-related explanation does not necessarily mean that the dismissal is discriminatory, it is likely to make the dismissal unfair.
Chris Bains, solicitor, Thomas Eggar