City of Edinburgh Council v Dickson EATS/0038/09

unfair dismissal | disability discrimination | diabetes

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an employee was unfairly dismissed for viewing pornography at work during a “hypoglycaemic episode” brought on by diabetes when he behaved wholly out of character and after which he had no recollection of what he had done. However, it overturned the tribunal decision that the dismissal amounted to disability discrimination.

Mr Dickson, who was a community worker at the City of Edinburgh Council, had suffered from type 1 diabetes for over 30 years, with his condition having been poorly controlled in recent years. His manager received a complaint from a youth club organiser that children in the youth club and the adults accompanying them had seen him viewing pornography in the council’s public computer suite. Mr Dickson argued at a disciplinary hearing that he had no recollection of the incident but, if it had happened, it must have been caused by his diabetic condition and it had happened during a hypoglycaemic episode. His argument was rejected and he was dismissed for misconduct, a decision that he failed to have overturned in an appeal hearing. Mr Dickson brought claims for unfair dismissal and disability discrimination.

The employment tribunal found that Mr Dickson had been unfairly dismissed because the employer had made no attempt to investigate his claim that diabetes had caused his behaviour. The employment tribunal ordered that he should be reinstated. The employment tribunal also found that the dismissal constituted direct disability discrimination and that, even if it had not been direct discrimination, it would have been disability-related discrimination. It awarded Mr Dickson £25,000.

The EAT agreed that the dismissal had been unfair. It applied the test set out in British Home Stores Ltd v Burchell [1978] IRLR 379 EAT for considering whether or not a decision to dismiss an employee for misconduct is unfair. The three questions to be asked are:

  • Did the employer genuinely believe that the employee was guilty of misconduct?
  • Did the employer have reasonable grounds for that belief?
  • Did the employer carry out as much investigation into the matter as was reasonable in the circumstances?

The EAT said that the employer had satisfied only the first part of the test. The employer did not have reasonable grounds for believing that Mr Dickson was guilty of misconduct because it had not considered his explanation that his behaviour had been caused by a medical condition. In addition, the employer had not carried out a proper investigation. For example, it had not sought medical advice on Mr Dickson’s medical condition.

The EAT went on to uphold the employment tribunal decision to reinstate Mr Dickson. It rejected the employer’s argument that it was impractical for him to be reinstated. The EAT agreed with the tribunal that Mr Dickson had a previously unblemished work record; had good relationships with colleagues; and may not have been responsible for his actions.

However, the EAT overturned the employment tribunal finding of disability discrimination. It criticised the assertion by the tribunal that, even if the dismissal had not been direct discrimination, it would in any event have been disability-related discrimination. The House of Lords decision in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL removed for all practical purposes the differences in scope between direct disability discrimination and disability-related discrimination. This is because the House of Lords defined the comparator as a person whose case was in all respects identical to that of the claimant but who was not disabled. On that basis, less favourable treatment would, in practice, be established only where the disability constituted the ground for the treatment, ie in a case of direct discrimination. Therefore, it is now “practically impossible” for the one of these two types of claim to succeed where the other would not.

The EAT then asked the “reason why” question. In other words, it asked whether or not the employer’s failure to take Mr Dickson’s case seriously was “on the ground that” he was a diabetic. In cases of direct discrimination or disability-related discrimination, it has to be decided what was influencing the mind of the decision maker. The EAT saw no reason to suppose that the fact that Mr Dickson is a diabetic influenced the employer’s thinking about the disciplinary issue in this case. The fact that an employer treats a disabled person unreasonably, even in a matter related to a disability, does not necessarily mean that it has done so because the person is disabled.

Case transcript of City of Edinburgh Council v Dickson (Microsoft Word format, 139K) (on the EAT website)

Go to XpertHR case law stop press.