In the case of Ms M Davies v Scottish Courts and Tribunals S/4104575/2017 (Employment Tribunals Scotland) the Employment Tribunal found that the Claimant had been unfairly dismissed, that her dismissal was because of something arising in consequence of her disability, and the Respondent could not show that that outcome was a proportionate means of achieving a legitimate end. The Respondent was reinstated and received arrears of net pay.
The facts in Ms M Davies v Scottish Courts and Tribunals
The Claimant commenced employment with the Respondent on 27 July 1997. She was employed as a Court Officer, responsible for assisting the Clerk in the running of the Court.
Over the previous 2 – 3 years, the Claimant had suffered the onset of menopause which resulted in very heavy bleeding (generally referred to as flooding). The Claimant became severely anaemic due to the heavy bleeding, and also felt “fuzzy”, emotional and lacking in concentration at times. The Claimant informed her two line manages of her condition and that she was being put on HRT as a result of visiting a menopause clinic.
The Claimant and her line managers agreed that, as a result of her condition, she would, for the majority of time, be taken off court duty and when she was required, she would be assigned to a court that had toilets nearby. In February 2017, the Claimant took a medication called Cystopurin that had to be dissolved in water.
On 22 February 2017, the Claimant took her medication to work which was on this day, in a court. She also carried a large pencil case with her sanitary products in it. She left the court for a few minutes during proceedings and on return noticed that the jug of water on her desk had been drunk and her pencil case moved. She saw two male members of the public drinking water and confirmed that they had indeed drunk her water. She warned them that her medication had been dissolved in it and one of the men became verbally abusive. The Claimant raised her voice in response.
The Claimant was asked to provide a written account of what had happened at the end of the day for her employer (the Respondent) and was called to a health and safety meeting the following day. Before she attended this meeting, she learnt from the health and safety investigators that had dealt with the incident, that the medicine had not been added to the water, as, according to the investigators, the water would have turned a noticeable pink colour.
After the meeting, a Mr Miller, acting on behalf of the Respondent produced a health and safety report in which he claimed that the Claimant had not only breached section 7 of the Health and Safety Act, but the report also questioned the veracity of her account of that day (given that she would have known that no medicine had dissolved as the water was colourless). In addition, he considered that the Claimant showed “no remorse” for her actions and that she should be subject to a disciplinary procedure with a view to her having committed gross misconduct.
On 24 April, the Claimant was sent a letter inviting her to a disciplinary hearing. Before that date, the Respondent was informed that one of the men who thought they had drunk the Claimant’s medicated water in court, had appealed his case blaming the Claimant for causing him anxiety such that he lost his concentration at his initial hearing.
In the letter, the Claimant was accused of breaching statutory health and safety law as well as the Civil Service Code of Conduct by failing to look after her prescription medicine. In addition, she was accused of bringing the Respondent into disrepute. The Claimant was accompanied by her union representative who first objected that the Claimant had not been accompanied to the first health and safety meeting with the Respondent or seen the health and safety investigation report when it was first produced. Details of the Claimant’s condition and her unblemished service record of 20 years were put forward. At the disciplinary hearing, the Claimant explained that she genuinely had not realised her mistake as her condition made her flustered and forgetful so that she could not remember if she had dissolved the medication or not.
Despite these submissions, the Respondent dismissed her for gross misconduct on the grounds that she knowingly misled the two male party litigants and the Respondent’s management. In reaching this conclusion Mr Bain (the chair at the disciplinary) attached weight to his belief the Claimant had been using the medication for some time and would have known it turned water pink. Mr Bain acknowledged the Claimant’s medical condition but concluded the symptoms of inability to remember appeared only to have started after the health and safety interview.
The Claimant appealed which was unsuccessful and once she was dismissed, she was unable to find alternative employment. She was also prescribed anti-depressants as a result of the ordeal she had been through. She lodged a complaint at the Employment Tribunal.
The decision of the Employment Tribunal
The issues to be determined by the Tribunal were the following:
- What was the reason for the Claimant’s dismissal and was it for a reason falling within section 98(1) Employment Rights Act;
- Was the Claimant’s dismissal fair under section 98(4) Employment Rights Act;
- If the answer to (2) was yes, was the Claimant’s dismissal because of something arising as a consequence of her disability;
- If so, could the Respondent show that the treatment was a proportionate means of achieving a legitimate aim
The Respondent’s submissions were that the Claimant was dismissed for a fair reason (that was conduct because she had lied about her medication in the water); the Respondent did genuinely believe that the Claimant was guilty of misconduct. Further, there were reasonable grounds for that belief as the Respondent believed the Claimant was well acquainted with the medication and would have known it turned the water pink and tasted of cranberry. The Claimant had been clear the medication was in the jug and her story only changed when the health and safety investigators told her the medication could not have been in the water. The Respondent’s decision to dismiss therefore was in the range of reasonable responses because there had been a significant and repeated lie; the two men in court had been told they had ingested medication when they had not; this could have had serious health consequences for the two men; the Claimant’s actions caused a statutory appeal and the Claimant had not shown remorse.
The Claimant submitted that her condition amounted to a disability in terms of section 6 Equality Act 2010. The Tribunal heard evidence regarding the impact of the condition on the Claimant’s day to day living and her performance at work. For example, the Claimant got anxious and upset; suffered short term memory loss and became confused. The Claimant argued that her dismissal was an act of unfavourable treatment because the reason for the Claimant’s dismissal was her conduct and it was clear from the evidence that the Claimant’s conduct was affected by her disability. The Claimant mistakenly advised the two men in court that they may have drunk water containing her medication due to her memory problems which arose from her peri-menopause and anxiety. The Claimant argued that there was a clear causal link between the effects of the Claimant’s disability and the unfavourable treatment. Accordingly, it was for the Respondent to show dismissal was a proportionate means of achieving a legitimate aim and yet the Respondent had not explained what their legitimate aim was and in fact, the reasonable needs of the business did not outweigh the discriminatory effect of the Respondent’s act.
The Tribunal lay out the legal test for unfair dismissal with the relevant case law, that is that section 98 sets out how a Tribunal should approach the question of whether a dismissal is fair. There are two stages: first, the employer must show the reason for the dismissal and that it is one of the potentially fair reasons set out in section 98(1) or (2). Second, if the employer is successful at the first stage, the Tribunal must then determine whether the dismissal was fair or unfair under section 98(4). This requires the Tribunal to consider whether the Respondent acted reasonably in dismissing the employee for the reason given.
In regard to answering the first decision, the Tribunal decided that while the Respondent believed the Claimant guilty of the alleged misconduct, they did not have reasonable grounds upon which to sustain their belief as they could not provide an answer as to why the Claimant would have lied. Further, they decided the investigation carried out by the Respondent was flawed because they had failed to disclose the health and safety report to the Claimant in a timely fashion and the first and second investigations lacked balance.
The Tribunal then turned to the second question and reminded itself that it was not its role to decide whether it would have dismissed the Claimant. The question was whether the decision of the Respondent to dismiss the Claimant fell within the band of reasonable responses which a reasonable employer might have adopted in the circumstances.
The Tribunal considered that the response to dismiss had not been reasonable. The Tribunal explained that it had had regard to the following conclusions: the health and safety investigation and report strayed into matters far outside its remit and tainted the subsequent disciplinary process; the investigation carried out by the Respondent was flawed because relied on the health and safety report without disclosing it to the Claimant; the investigation report was not balanced and it failed to have proper regard to the claimant’s explanation and the medical information; there were not reasonable grounds upon which to sustain the belief the Claimant lied.
Disability Discrimination – Section 13 Equality Act 2010
The Tribunal then turned to the Claimant’s disability discrimination claim: The unfavourable treatment in this case was the dismissal of the Claimant. The Tribunal posed the question: what caused the dismissal of the Claimant? The reason for the dismissal was the conduct of the Claimant. The Claimant’s conduct was affected by her disability insofar as her condition caused her to be confused and forgetful about whether she had taken her medication and whether she had put it in the water jug. This situation caused the Claimant to advise the two men they had consumed water containing her medication: it also caused her to be anxious and to react to the situation by raising her voice. The Tribunal were entirely satisfied there was a clear causal link between the Claimant’s disability and her conduct on 22 February.
The Tribunal then turned to the justification defence provided by the Respondent: that the legitimate aim of the Respondent was said to need to have an honest and trustworthy staff; and it was submitted that dismissal of the Claimant was a proportionate means of achieving this legitimate aim. The Tribunal accepted having an honest and trustworthy staff could be a legitimate aim and it is an aim which is reflected in the core values of the Respondent. However, they could not accept that dismissal of the Claimant in the circumstances of this case, was a proportionate means of achieving that aim. For example, it was not proportionate to fail to consider alternatives available to the Respondent, such as a verbal or written warning, which could have achieved the same aim but would not have had the same discriminatory effect.
The Employment Tribunal awarded Ms Davies the following sums in compensation:
- Loss of earnings: £14,009.84
- Injury to feelings: £5,000
The Tribunal also ordered that she be reinstated to her position at the Tribunal service.
Our solicitors’ view on Ms M Davies v Scottish Courts and Tribunals
Caroline Lewis, a specialist employment solicitor at Redmans, commented on the case: “This case shows that the range of “consequences” of an employee’s disability can be very wide. It can include anything which is the result or outcome of a disability. Employers need to tread carefully when dismissing, or considering to dismiss, an employee who has a disability. Discrimination damages are uncapped so employers ignore the provisions of the Equality Act 2010 at their peril. But, at the same time, there is no need for sustained panic because those who act reasonably should be on safe ground. Furthermore, those with decent employee benefits packages will already have some valuable tools to help them remain compliant”.
The decision of the Employment Tribunal in Ms M Davies v Scottish Courts and Tribunals can be found here