Although tribunals are able to reduce a claimant’s compensation by an amount that they consider to be “just and equitable” depending on the circumstances of the dismissal, the Employment Appeal Tribunal (EAT) held in Wheeley v University Hospitals Birmingham NHS Trust that tribunals have to identify the individual aspects of the conduct that led to the dismissal before assessing the extent to which the claimant was to blame.
Thompsons was instructed by UNISON (MiP) to act on behalf of its member.
Basic facts
After the Trust announced a restructure of the department in which Ms Wheeley worked as head of informatics, she sent two inappropriate emails to the medical director expressing her unhappiness at the decision. In addition, despite being told not to, she emailed members of her team saying that she was considering her position.
As a result, she was suspended and told not to contact colleagues without the express consent of her manager. However, a week later she went to the medical director's home in an attempt to discuss matters. An investigation followed and she was found guilty of gross misconduct, despite the fact that she had worked for the Trust for nearly 20 years and had a clean disciplinary record.
During the investigation into the misconduct it transpired that Ms Wheeley was suffering from bipolar disorder. The report into her condition confirmed that, when in a manic phase, it was common for sufferers to make poor judgements. Specifically, the medical expert concluded that she would not have expressly flouted a management instruction, had it not been for her elated state. Ms Wheeley herself acknowledged her behaviour had been wrong and considered her actions to be out of character.
She claimed unfair dismissal and disability discrimination. The question for the tribunal was the extent to which the diagnosis of bipolar disorder should have been a factor on the decision by the Trust to dismiss her.
Tribunal decision
While acknowledging that it was difficult to identify which parts of Ms Wheeley’s behaviour could be attributed to her bipolar disorder and which could not, the tribunal noted that she had never before flouted a direct management instruction, visited a director at home uninvited, or inappropriately emailed the executive or members of her team.
The tribunal concluded therefore that her judgement had been impaired at the time and her reactions were amplified as a result of her condition. It held that she had been unfairly dismissed and had been discriminated against because of her disability because of her employer’s failure to appropriately discount the effects of her disability. However, it also held that, as she had contributed to her dismissal, it was “just and equitable” under section 123(6) of the Employment Rights Act, to reduce her compensation by 25 per cent.
Ms Wheeley appealed against the finding of contributory fault and the Trust cross-appealed against the findings of unfair dismissal and disability discrimination on the basis that, if upheld, the tribunal’s decision would mean that no employee whose disability significantly affected their conduct could be dismissed.
EAT decision
Dismissing the Trust’s cross-appeal, the EAT held that, by using the word “discount”, the tribunal did not mean that an employer would have to completely disregard a worker’s medical condition. Instead employers just had to take it into account, rather than disregard it entirely.
However, with regard to the issue of contributory fault, it held that the tribunal was wrong in law not to have identified the individual aspects of conduct said to have contributed to Ms Wheeley’s dismissal, after which it should have objectively assessed the extent to which she was to blame.
Comment
This case is a reminder that the tribunal should consider four main questions when assessing contributory conduct. It must identify the conduct; decide whether it is blameworthy; ask whether the blameworthy conduct caused or contributed to dismissal; and finally decide if it is just and equitable to reduce the award.