Martin v Home Office

In assessing the fairness of dismissal for misconduct, a tribunal must apply the statutory reasonable-employer test. An employer’s disciplinary policy is relevant, but it cannot displace that test.

Where a policy requires mitigating circumstances to have had a material impact on conduct, that is a looser causal requirement than direct cause and effect. Treating the two tests as equivalent is an error of law. The reasonableness of communicating a disciplinary policy is also part of the overall assessment and must not be judged by a perversity test. Clear findings on material medical evidence and clear reasons on the causal connection required for disability discrimination are essential.

The claimant, an effective Home Office employee, was summarily dismissed for making unauthorised searches of its database concerning her former partner and members of his family. She relied on serious personal circumstances, depression and medical evidence as mitigation.

The Employment Tribunal dismissed her claims for unfair dismissal and disability discrimination under section 15. It held that the dismissal fell within the range of reasonable responses and that the searches did not arise in consequence of disability. It also upheld the proportionality of dismissal to enforce data-security standards. The claimant did not appeal the dismissal of her reasonable-adjustments claim.

She appealed to the Employment Appeal Tribunal principally on the construction and application of the Home Office’s zero-tolerance policy, the communication of that policy, the medical evidence, and the section 15 causation and proportionality issues.

1. Appeal allowed. The decisions dismissing the unfair-dismissal and section 15 disability-discrimination claims were set aside and remitted to a freshly constituted Employment Tribunal for reconsideration.

2. The Employment Tribunal had not substituted the Home Office policy for the statutory test under section 98(4). Its reasons showed that it had considered the question of what a reasonable employer would do. Ground 1 therefore failed.

3. The policy required mitigating factors to have had a material impact on behaviour. That was a looser causal test than whether they directly caused the misconduct. The disciplinary decision-maker had applied a direct-causation test. The appeal decision did not distinguish the two tests. The Employment Tribunal also treated the tests as equivalent by looking for a direct linkage between personal difficulties and particular searches. This was an error of law which might have affected the conclusion on dismissal, especially as the case was at the extreme limit of reasonable responses.

4. The reasonableness of how the zero-tolerance policy was communicated formed part of the overall section 98(4) assessment. The Employment Tribunal had, after correction of a typographical error, asked a perversity question. That was the wrong standard. Its conclusion was also difficult to reconcile with its finding that any organisation changing such an important policy would have done more to communicate it.

5. The Employment Tribunal’s finding that low mood began only after the disciplinary issue arose contradicted the recorded occupational-health evidence that symptoms had existed from 2012. That finding was central to its conclusion that the claimant acted wilfully and could not be treated as immaterial.

6. The reasons on whether the misconduct arose in consequence of disability under section 15 were too unclear to reveal the Employment Tribunal’s approach to the medical evidence and the required causal link. The issues overlapped with the erroneous treatment of mitigation in the unfair-dismissal claim. The proportionality assessment could not safely be maintained in a separate compartment because the correct construction of the policy could affect it.

7. Grounds 2 and 5 to 8 succeeded. Ground 3 failed. Ground 4 did not provide an independent ground of appeal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal on grounds 2 and 5 to 8. It set aside the Employment Tribunal’s dismissal of the unfair-dismissal and section 15 claims and remitted them to a freshly constituted tribunal.
• Employment Tribunal, London Central: By judgment sent on 25 June 2015, with written reasons sent on 6 August 2015, dismissed the claimant’s claims for unfair dismissal, disability discrimination under section 15, and failure to make reasonable adjustments under section 20. The section 20 decision was not appealed.