Mr Anderson was employed as a gardener, working between 6 hospitals and 23 health centres. He was arrested for drink driving while being on call at work, which Mr Anderson claimed was due to anxiety and depression. During his employment, he had been absent from work previously due to anxiety and depression however, a 7-year period passed before his arrest where he had no absences for anxiety or depression.
Was his dismissal unfair?
Mr L Anderson v Fife Health Board
Mr Anderson was employed by the respondent as a gardener. His employment commenced on 18 June 2001. His duties included ground maintenance at around 6 hospitals and 23 health centres. This involved grass cutting, weed-killing, pruning, hedge cutting and maintenance of equipment and machinery, as well as gritting and snow clearing of car parks and footpaths in the winter months.
The job entailed long hours, with gardeners working six days a week. From 2009, the number of gardeners was reduced, which meant Mr Anderson was on call for two weeks out of every three in winter months, during which time he had to be on standby 24 hours a day, seven days a week.
In 2010 and 2012 Mr Anderson was absent from work due to anxiety and depression for 3 and 4 months respectively. On each occasion he was referred to occupational health. Both reports indicated that symptoms may recur in the future and made it clear that the claimant continued to take medication to manage his symptoms.
Over the course of the next 7 years, Mr Anderson had a number of short-term absences, but no further absences for anxiety or depression. He continued to take medication for his condition.
On 2 January 2018 Mr Anderson was arrested for driving while under the influence of alcohol. He had been on call that night but was not called out. He pleaded guilty to driving while under the influence of alcohol the following day and sentencing was deferred. The sentence thereafter included a ban from driving for two years.
Fife Health Board instituted disciplinary proceedings, alleging that his actions amounted to gross misconduct. At an investigation meeting, Mr Anderson indicated that his workload, anxiety and depression had contributed to his actions. An occupational health opinion was requested; however, the referral did not ask whether Mr Anderson’s medical condition caused his actions, focusing instead on the workload aspects.
A number of disciplinary hearing dates were set throughout spring and summer 2018, but Mr Anderson was unable to attend these due to ill-health. Ultimately a disciplinary hearing was held in Mr Anderson’s absence and a decision taken to terminate his employment by reason of gross misconduct.
Due to Mr Anderson not having taken any mental health-related absences since 2012 at the time of the incident, it was decided that his anxiety and depression were not factors in the events of January 2018.
Mr Anderson brought a claim for unfair dismissal and discrimination arising from a disability.
The Employment Tribunal found that Mr Anderson was unfairly dismissed. It said that a reasonable level of investigation had not been carried out at the time it was decided Mr Anderson was guilty of gross misconduct. Crucially, Fife Health Board did not seek medical opinion on whether Mr Anderson’s anxiety and depression caused the drink driving. The Tribunal considered that a reasonable investigation in the circumstances had not been completed.
The respondent was ordered to pay to the claimant the sum of £10,208.56 by way of compensation.
The claim for discrimination arising from a disability was unsuccessful.
This case serves as a reminder to employers to ensure that they undertake a reasonable investigation before deciding to dismiss an employee for misconduct or gross misconduct. What constitutes a reasonable investigation will always be fact-specific but it will usually be difficult to justify not following up on something an employee suggests should be investigated.
Employers should remember to consider if an employee’s ill-health or disability may be a cause of misconduct. Employers aren’t normally medically qualified to make that assessment, so in most cases it will require a referral for occupational health advice.
If you have any queries in relation to discrimination, dismissal or any other HR queries please contact our employment team on 01228 552600 or 01524 548494.