A Good News Story for Employers
Most of the employment tribunal cases that are reported in the media (and highlighted by other solicitors) involve employers losing claims and employees winning large amounts of money. That is because those cases are the most newsworthy but the problem is that they are not representative. The result, as one Chief Executive recently complained to us, is that HR teams can become very risk averse because they are terrified of losing claims for unfair dismissal or discrimination. That Chief Executive asked us to share stories of employers winning claims so this is an example of that.
In Forrester Hayes v Scania, Mr Forrester Hayes was an apprentice technician with ADHD. One day, he placed his lunch in the tearoom. About half an hour later, he discovered that it had been tampered with: his crisps were smashed, chocolate bars crushed, and his sandwich had finger sized holes in it. Someone had also emptied a tea bag over it. Mr Forrester Hayes suspected that someone from the earlier shift was responsible. He messaged everyone from that early shift, asking who had tampered with his lunch. He also sent threatening messages to TA, an apprentice on the earlier shift, including this one: “If it was u ur paying for my lunch if u don’t ill cut ur tyre valves off”.
Mr Forrester Hayes was suspended while an investigation took place, and an occupational health report was obtained. At the disciplinary hearing, he admitted sending the messages and acknowledged that they were unacceptable. However, he argued that his ADHD meant that he acted impulsively, had intense emotions and high levels of frustration in certain situations.
He was dismissed for gross misconduct. Scania explained that while ADHD might affect his ability to stay calm in certain situations, they did not believe that the messages were impulsive because he had sent repeated messages to multiple people. They also said that “the use of aggressive, threatening, and abusive language towards a fellow employee, even if directed towards their belongings, is wholly unacceptable and violates our company’s values and policies.”
He brought claims for unfair dismissal, notice pay and disability discrimination.
The tribunal acknowledged that Mr Forrester Hayes’ ADHD had a loose connection with sending the messages but they accepted that Scania’s aim of protecting staff from aggressive, threatening and abusive language was a legitimate aim. As to whether it was proportionate, they found that once Scania found out about the messages he had sent, it had to investigate the matter. The tribunal also found the dismissal a proportionate means of achieving a legitimate aim since the threats were serious and likely to alarm the recipient. The tribunal agreed that Scania was right to decide that ADHD did not excuse his conduct, given the repeated messages to multiple people. He was also on notice from an earlier final written warning that reacting impulsively and taking out his anger on colleagues was likely to lead to dismissal. Therefore, it was proportionate to dismiss him and all of the claims failed.
This case is a useful reminder that it is possible, in certain circumstances, to dismiss an employee even where there is a link between their disability and their conduct. However, you must take care and must have a legitimate aim and be able to justify your decision to dismiss someone as a proportionate way to achieve it.
We hope that this offers some reassurance.
The other good news is that we offer a retainer service which provides unlimited advice on employment law issues. The cost starts from just £95 per month plus VAT. For a small additional fee, we can even include work on tribunal claims. If you would like a quote please email proberts@keelys.co.uk