In the case of Burdett v Aviva Employment Services Limited, the EAT considered the potentially thorny issue of dismissing an employee who was a paranoid schizophrenic.
Mr Burdett was diagnosed as suffering from schizophrenia – a disability within the meaning of the Equality Act. As a result of his diagnosis, Mr Burdett was prescribed antidepressant medication and antipsychotic medication. In 2008, he stopped taking his medication, on medical advice, although began taking it again after he sexually assaulted members of the public.
In 2010, he stopped taking his medication again, without reference to medical advice. Following this, he sexually assaulted two female employees and threatened to assault a security guard. There was a further assault after he had left the workplace.
The company began a disciplinary process. Mr Burdett did not deny the incidents but did explain that he had made a serious error of judgement in stopping his mediation. Ultimately, Mr Burdett was dismissed.
The Employment Appeal Tribunal did not agree with the Tribunal’s initial decision that this was a case of admitted gross misconduct, and that the dismissal had been fair. Although Mr Burdett had admitted the incident, the EAT felt that this did not necessarily constitute an admission of gross misconduct as gross misconduct required culpability. The Tribunal had also failed to consider whether Mr Burdett had acted wilfully or in a grossly negligent manner. By doing so, the Tribunal had been wrong to categorise the behaviour as gross misconduct.
Gross misconduct requires culpability on the part of an employee, which requires particularly careful consideration when dealing with an employee who has a mental illness. Additionally, an employer should always consider any mitigating circumstances, particularly in respect of the employee’s mental health, before taking the decision to dismiss.