Employers to keep an open mind?

27/05/2010

By Nick Hobden, Partner and Head of Employment.

The case of City of Edinburgh Council v Dickson does not necessarily raise any excitingly new points of law.  But it does highlight the importance of employers remaining open-minded at all times, however sceptical they may be about the excuses or explanations that their employees might offer up.

The facts

Dickson (D) had Type 1 diabetes. However his condition was poorly controlled, largely due to the wrong prescription of insulin. This gave rise to a greater risk that D would fall into a hypoglycaemic state. 

D was employed as a community learning and development worker, based in the community wing of a school. He was suspended from work following a complaint that he had been seen viewing "seriously pornographic" images. A disciplinary investigation revealed that D had also been on a website earlier that day which contained inappropriate sexual imagery.

At a subsequent disciplinary hearing, D explained that he had no recollection of either incident and that it must have been because of his diabetes and having suffered a hypoglycaemic episode. The manager conducting the hearing considered D's defence and weighed it up in the light of (i) comments from the Council's occupational health doctor which suggested that D's condition might offer a potential explanation for his conduct and (ii) the opinion of a pharmacist (who happened to be the HR adviser's wife) who seriously questioned the credibility of D's defence. The manager also considered material submitted by D's union representative about the effects of a hypoglycaemic episode. But the manager rejected D's explanation, concluding that the conduct was conscious and deliberate. D was dismissed for misconduct.

Decision

The Employment Tribunal (ET) decided the dismissal was unfair. On appeal, the Employment Appeal Tribunal (EAT) upheld the ET decision. In giving its reasons, the EAT noted that the employer may have been suspicious as to the arguments put forward by D to explain his conduct and that scepticism on the part of the manager and employer was justifiable. However they said that "scepticism is one thing…a refusal seriously to consider the explanation proffered is another."

The manager had made no attempt to investigate or understand D's defence; it was simply discounted, primarily on the opinion of the HR adviser's wife, without a proper reason for doing so. He had not taken the explanation seriously. If the manager had considered the defence properly and reached an informed decision to dismiss, then the EAT said that it may have found it more difficult to conclude that his decision was unfair. But in the circumstances, the EAT was satisfied that even if sceptical, the fair course of action in such circumstances would have been to take further and more detailed advice on hypoglycaemia and its effects. The manager did not do so.

What does this mean?

Although on its facts this is a very unusual case, it underlines the importance of considering even the most unlikely of defences that an employee might raise; employers should investigate such cases thoroughly and with an open mind before making a decision about an employee's conduct.

If you require any help with practice and procedure for disciplinary hearings, then please contact a member of the Employment Team.