Was a disabled employee with Asperger’s syndrome discriminated against by being dismissed following a criminal conviction?

No, said the Employment Appeal Tribunal in Hensman v Ministry of Defence.

Background

Mr Hensman suffered from Asperger’s syndrome. He was dismissed as a result of his criminal conviction for covertly recording a colleague in the shower area of shared accommodation. Mr Hensman brought a claim for unfair dismissal and argued that he suffered discrimination arising from disability when he was dismissed.

The tribunal found that Mr Hensman had indeed been unfairly dismissed, noting that the employee was not at fault for his crime because of his ‘abnormality of mind’. The tribunal also felt that the employer, a large organisation, could have transferred the employee if necessary to protect the ‘victim’.

The employer was successful in overturning the tribunal’s decision on appeal, however. It argued that the tribunal should have considered the breach of trust, the fact of the employee’s covert conduct, and his changing evidence. The case will be re-heard by a different tribunal.

Implications

Although the employer in this case succeeded in its appeal, this was because the tribunal had made a technical error in its approach.

Employers are reminded that tribunals apply a stringent test to establish whether a disabled employee’s dismissal or less favourable treatment can be objectively justified, or whether it amounts to discrimination.

As for unfair dismissal, a dismissal will not necessarily be fair simply because the employee was convicted of a criminal conviction. Employers must remember that the decision to dismiss should follow a proper procedure and be within the band of reasonable responses.

The full case can be read here.

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