Employment Law Case Update: Behaviour Caused or Affected by Disability

Our Employment Law team here review the case of J Austin v The Leeds Teaching Hospitals NHS Trust and advises how ignoring the background issues behind an employee’s pattern of behaviours led to tribunal.

Ms Austin was an employee of the Leeds Teaching Hospitals NHS Trust for 25 years before being dismissed in May 2017. Ms Austin had a number of impairments including depression, anxiety and fibromyalgia. While employed by the Trust, Ms Austin repeatedly checked her own medical records and, on three occasions, those of her mother.

The Trust subsequently conducted an investigation, which increased Ms Austin’s anxiety. She continually “pestered” her line manager for information about the ongoing investigation and was consequently suspended. Ms Austin was summarily dismissed on 23 May 2017. By the time she was dismissed, it had been 18 months since the conduct that gave rise to the investigation.

The Employment Tribunal found that Ms Austin’s actions were not morally culpable. The frequent checking of her own medical records and pestering her line manager were caused by her disability. The ET also found that suspension and dismissal were not “proportionate means of achieving a legitimate aim in the circumstances.” Therefore, the ET concluded that the suspension and dismissal amounted to disability discrimination in that the behaviours that led to her suspension and dismissal were arising from her disability.

The ET also considered the way in which Ms Austin was dismissed. Ms Austin’s 25 years of employment meant she was entitled to 12 weeks’ notice. By dismissing her summarily, the Trust had breached Ms Austin’s contractual right to notice.

In determining the correct remedy the ET rejected the Trust’s assertion that Ms Austin had not acted reasonably to mitigate her losses. It found that Ms Austin’s disability created “psychological barriers” in her search for employment, including a paranoid belief that the “public sector including the NHS are hampered by shared prejudice about her.” It reviewed evidence from Ms Austin that she had been actively looking for employment, including evidence of over 50 job applications. The ET concluded that given the circumstances surrounding her health, she did not act unreasonably in her steps to find employment.

The ET awarded Ms Austin £265,719 for disability discrimination and £3,394 for breach of contract.

This case shows the importance of understanding how disabilities can affect employee behaviour, even in cases of alleged gross misconduct. If an employee has a disability then it is important that employers consider whether an employee’s behaviour is caused or affected by their disability and whether they should then take disciplinary action in the circumstances.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.