Wheeley v University Hospitals Birmingham NHS Trust

For a reduction for contributory conduct under Employment Rights Act 1996, an Employment Tribunal must identify the conduct relied on, decide objectively whether it was blameworthy, determine whether it caused or contributed to dismissal, and then assess the just and equitable reduction. It must not treat the employer’s view of the conduct as determinative.

Where misconduct was affected by mental illness, an employer is not required to disregard it entirely. The effect of the disability must instead be taken into account when assessing the fairness and proportionality of dismissal under the Equality Act 2010.

The Claimant, a long-serving Head of Informatics, was dismissed for conduct found by the Employment Tribunal to amount ordinarily to gross misconduct. Medical evidence established that she was in a manic phase of bipolar disorder and that the condition significantly affected her actions.

The Tribunal held the dismissal unfair and discriminatory under section 15 of the Equality Act 2010. It nevertheless reduced compensation by 25% for contributory conduct, relying on previous behaviour and a delay in apologising. The Respondent cross-appealed against the finding of unfair dismissal and discrimination. The Claimant appealed the contribution finding and observations relevant to remedy.

1. The Claimant’s appeal was allowed and the cross-appeal dismissed. The Employment Tribunal had not held that disability-related misconduct had to be ignored. Read fairly, its reference to “discounting” the effect of the condition meant taking that effect into account, rather than granting immunity from disciplinary action. Its self-direction under section 15(1)(b) of the Equality Act 2010 was correct.

2. The 25% contributory-conduct reduction could not stand. Applying Steen v ASP Packaging Ltd [2014] ICR 56, the Tribunal had to identify the particular conduct alleged to be contributory, assess objectively whether it was blameworthy, decide whether it caused or contributed to dismissal, and then make a just and equitable assessment of the reduction.

3. The Tribunal did not perform that analysis. Its finding that the Claimant would probably have acted “inappropriately” without bipolar disorder did not identify what conduct was meant or establish objective blameworthiness. It also concentrated on the employer’s view of earlier behaviour and delayed apologies, rather than applying the required objective assessment. The reasons did not adequately explain either the conclusion on contribution or the selection of 25%.

4. The Tribunal’s comments on whether the Claimant would accept a sanction short of dismissal were unfortunate and appeared premature. They did not prevent reconsideration. The contribution and consequential remedy issues were remitted to the same Tribunal, whose familiarity with the evidence made a fresh tribunal impracticable.

• Employment Appeal Tribunal: The Claimant’s appeal against the 25% contributory-conduct reduction was allowed. The Respondent’s cross-appeal against the findings of unfair dismissal and disability discrimination was dismissed.
• Employment Tribunal, Birmingham: Written reasons were sent on 22 March 2018. The Tribunal found unfair dismissal and discrimination under section 15 of the Equality Act 2010, and reduced compensation by 25% for contributory conduct.