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Gross misconduct caused by medical condition

How should employers deal with allegations of gross misconduct, where the misconduct in question may have been caused by a medical condition?

This was recently considered in a case involving a Sainsbury’s employee who was accused of groping a colleague and using inappropriate language.

Kelly v Sainsbury’s Supermarkets Ltd

Mr Kelly had worked at Sainsbury’s since March 2000. In 2004, he was involved in a road traffic accident which caused him to suffer serious injuries to his head, leaving him in an induced coma for one month and he remained in hospital for several months thereafter whilst he recovered.

On Mr Kelly’s return to work after the accident, he was unable to continue with his training as a manager, as he had suffered problems with his memory as a result of the accident. His career appeared to stall, and he did not make the progress that had been expected.

There were various incidents which were reported in the lead up to his dismissal, including comments made to female colleagues such as “Yummy Mummy” and asking for her phone number, inappropriate touching and making comments such as “bitch” and “whore” to a female colleague, whilst further complaints were made throughout the disciplinary procedure by other members of staff. These included allegations that Mr Kelly had asked for one of his female colleague’s bra size and whether he could “have a go”, if she broke up with her partner. Concerns were also raised regarding Mr Kelly’s performance to which Mr Kelly highlighted that, following his accident, he had been experiencing issues with his memory. Mr Kelly had also been subject to disciplinary proceedings, following one of number of incidents where it had been reported that he had insulted a female colleague. The outcome of this was that he received a first written warning, and again, Mr Kelly cited the effect that the accident had taken on his behaviour during this meeting.

In 2011, Mr Kelly was referred for a full neuro-cognitive assessment by a chartered occupational health therapist. The report noted that, “on occasions Mr Kelly’s employers have been concerned over his behaviour being inappropriate in the workplace. Some examples include outbursts, use of swearing and lack of insight to what is acceptable and what is not. These behaviours have only been observed since Mr Kelly’s Road Traffic Accident. Mr Kelly has expressed regret over these behaviours”. In addition to commenting on the fact that Mr Kelly had been on the management training programme for over 3 years, whereas most colleagues would complete this in 3 months.

In 2020, Mr Kelly was again accused of inappropriate behaviour by one of his female colleagues, who alleged that he called her a “bitch” and a “whore” and had also groped her and rubbed her shoulders. Mr Kelly was initially informed after the investigation into his conduct had concluded, that no further action would be taken; however, that the incident would remain on his record.

One month later, Mr Kelly’s female colleague blew the whistle on Mr Kelly and the Sainsbury’s handling of the investigation and also submitted an appeal against the outcome of the investigation. The appeal was upheld and Mr Kelly was subsequently suspended pending a second investigation into his conduct and the allegations made.

The second investigation was conducted by Mr Hunter, a store manager from another location and during this process, it is understood that Mr Hunter spoke to 13 witnesses who also made further complaints of inappropriate behaviour against Mr Kelly, including both physical and verbal conduct. Mr Hunter also spoke to Mr Kelly several times throughout the investigation and Mr Kelly had admitted during one of these meetings that he could not recall many of the events he was being accused of and concluded that he was not aware of his own behaviour.

In July 2020, Mr Kelly was subsequently dismissed for gross misconduct at his disciplinary hearing. A final written warning was not considered, as it was held that there was too much of a risk that the incidents would recur. Mr Kelly appealed the decision and his father accompanied him to the appeal meeting. His father stated during his appeal meeting that Sainsbury’s had failed to recognise Mr Kelly’s disability throughout the procedure and directed them to Mr Kelly’s personnel record for further evidence of this. The decision to dismiss Mr Kelly was upheld on the basis that those who conducted Mr Kelly’s disciplinary proceedings in 2020 could not be expected to have known about his car accident in 2004.

Mr Kelly initiated Employment Tribunal proceedings in December 2020. During the final hearing, the tribunal agreed that if Sainsbury’s had failed to act on the allegations, they would likely have faced a successful complaint of sex discrimination and harassment. That being said, the tribunal commented that Sainsbury’s had failed to obtain updated medical evidence, which could have explained the impact Mr Kelly’s head injuries had on his behaviour and steps that could have been taken to prevent any further incidents of the alleged behaviour.

Decision

Mr Kelly was successful in his claim for disability discrimination, as the tribunal ultimately found that Sainsbury’s had disregarded Mr Kelly’s disability. The tribunal commented that Sainsbury’s should have referred to the medical report which was held on his file. Mr Kelly was also successful in his claim for unfair dismissal, as it was found that there were failings during the disciplinary procedure, including a lack of clarity and specificity on the charges he faced, failure to provide him with a copy of the witness statements during the proceedings to enable him  to review them in his own time and dismissing him for an allegation that he was not originally accused of.

Mr Kelly was, however, was unsuccessful in claims brought for breach of contract and wrongful dismissal.

Comment

This case highlights the importance of conducting a thorough and fair disciplinary investigation, taking into account all of the available evidence which the employer holds in relation to an employee. Employers should also be mindful that they may need to refer an employee to occupational health in order to obtain updated medical evidence, which may be required in order to assist the investigation. Disregarding or failing to take into account medical conditions which could have caused the behaviour, without medical advice, will usually result in an unfair dismissal finding.

Employers should ensure that they have both a disciplinary procedure and a grievance policy, which employees and employers can refer to in order to ensure that the process is being followed correctly and consistently.

If you have any queries in relation to any disciplinary matters, polices or procedures, please contact our employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

 

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