Burdett v Aviva Employment Services Ltd (Unfair Dismissal)

Where dismissal is said to be for gross misconduct, an Employment Tribunal must determine whether the employer had reasonable grounds to believe not only that the employee committed the acts alleged, but also that the conduct involved the necessary culpability, such as wilfulness or gross negligence. An admission of acts committed while affected by mental impairment does not necessarily admit gross misconduct.

A finding of gross misconduct does not automatically make dismissal reasonable. The Tribunal must assess mitigation and the range of reasonable responses. Under section 15 of the Equality Act 2010, objective justification requires a critical assessment of the discriminatory impact of dismissal and of less discriminatory alternatives capable of achieving the employer's legitimate aim.

The Claimant, who had paranoid schizophrenia, was dismissed after committing sexual assaults at and near his workplace during a relapse following discontinuation of medication. He accepted the acts and accepted making a serious error of judgment in stopping medication, but did not accept culpable gross misconduct.

The Norwich Employment Tribunal dismissed claims for unfair dismissal and discrimination arising from disability. It held that the Claimant had admitted gross misconduct, that dismissal was plainly fair, and that dismissal was a proportionate means of securing appropriate workplace conduct.

The Claimant appealed those two dismissals. The central issues were whether the Tribunal had addressed culpability and mitigation in its unfair-dismissal analysis, and whether it had properly assessed proportionality, including home-working as an alternative to dismissal.

1. Appeal allowed. The Employment Tribunal's dismissal of both the unfair-dismissal claim and the discrimination-arising-from-disability claim was unsafe.

2. In a conduct dismissal under section 98(2)(b) of the Employment Rights Act 1996, the employer's reason is identified subjectively. Where the reason relied on is gross misconduct, however, the Tribunal must decide objectively whether there were reasonable grounds to believe that the employee committed conduct capable of amounting to gross misconduct. That requires the requisite culpability.

   The Claimant's admission that he committed the assaults did not, in the exceptional circumstances of his mental impairment, establish that he acted wilfully or with gross negligence. Nor did the Tribunal's reasons show that it had decided whether his admitted error in stopping medication amounted to culpable gross misconduct. Its conclusion that he had admitted gross misconduct was therefore erroneous.

3. Even if gross misconduct were established, dismissal did not follow automatically. The Tribunal had to decide whether dismissal fell within the range of reasonable responses after considering relevant explanation and mitigation. Its statement that any employer would dismiss suggested an impermissible logical jump from gross misconduct to dismissal. This was not shown to be the exceptional, plainly heinous case in which explanation or mitigation could make no difference.

4. For section 15(1)(b) of the Equality Act 2010, adherence to appropriate workplace conduct and employee safety could be a legitimate aim. But the Tribunal had to scrutinise dismissal as the chosen means, weigh its serious discriminatory impact, and evaluate less discriminatory alternatives available on the evidence. Its reasons did not adequately address home-working, confused the protective aim with a retributive concern about the seriousness of past conduct, and lacked an evidential basis for a finding of relapse risk despite medication.

5. The parties were directed to make written representations on disposal within seven days.

• Employment Appeal Tribunal: Appeal allowed against the Norwich Employment Tribunal's dismissal of the unfair-dismissal and discrimination-arising-from-disability claims.
• Employment Tribunal: Norwich Employment Tribunal dismissed those claims in a reserved judgment sent to the parties on 11 June 2013.