Member S Gray Tribunal Member W Muir Mr L Anderson v Represented by Ms C Cruickshank-Gray Fife Health Board — 2019

Mr Anderson had been employed by Fife Health Board as a gardener since 18 June 2001. He worked across a number of sites and, by the time of the events in issue, was on a demanding winter on-call rota. The respondent accepted that he was disabled for Equality Act purposes because of anxiety and depression, which had previously caused absences in 2010 and 2012. On 2 January 2018 he was arrested for driving while under the influence of alcohol while on call, pleaded guilty the following day, and later lost his driving licence for two years.

The respondent investigated the incident and treated it as gross misconduct. The tribunal accepted that the reason for dismissal was conduct and that JR genuinely believed the claimant had committed misconduct, with reasonable grounds for believing that he had driven while under the influence of alcohol and for rejecting the claimant’s points about the domestic dispute and workload. However, it found that the respondent did not carry out as much investigation as was reasonable in relation to the claimant’s case that his anxiety and depression contributed to his actions. The occupational health questions did not ask whether that disability had contributed to the incident; instead, they focused on work pressures and alcohol dependence. The tribunal also found procedural unfairness because meetings with witnesses were not properly documented, an Investigation Update document was introduced at the disciplinary hearing without being disclosed, and the appeal did not address those defects.

The tribunal held that a reasonable employer, especially one with the respondent’s resources, would have obtained a medical opinion on whether the claimant’s anxiety and depression contributed to the 2 January 2018 incident before deciding to dismiss, and would have sought clarification about the undisclosed comments said to have been made by colleagues regarding his health. It therefore concluded that the dismissal was unfair under section 98(4) ERA 1996. It did not make any Polkey reduction, because it could not assess what would have happened had the respondent carried out a proper investigation into the medical issue.

The discrimination claim under section 15 EqA 2010 failed. The tribunal accepted that the dismissal was unfavourable treatment and that the identified 'something' was driving while under the influence of alcohol, but it found no evidence of a causal link between that conduct and the claimant’s disability. On remedy, the tribunal awarded a basic award of £1,544.96 and a compensatory award of £8,663.60, calculated from past and future loss, with a 10% uplift for breach of the Acas Code and a 75% reduction for contributory fault. The final award was £10,208.56.