Mental illness, culpability and gross misconduct

A recent appeal case illustrates the difficulties that can arise when dealing with instances of apparent misconduct where a mental impairment could have affected an employee’s ability to control their actions.  In such cases, before labelling an employee’s behaviour as ‘gross misconduct’, employers need to ensure they consider carefully the extent to which the employee was to blame for their conduct. 

Background facts

The Claimant had been diagnosed with depressive and paranoid schizophrenic illnesses, for which he was prescribed medication. On medical advice, he discontinued his antipsychotic medication. He also decided to discontinue his antidepressants, although he had not been advised to do so.  

Several months later he began to experience auditory hallucinations.  Then, whilst at work one day, the Claimant sexually assaulted two female fellow employees. He then threatened to assault a security guard, assaulted a member of the public and attempted to assault another woman (an independent contractor of the Respondent) before being arrested and later detained under the Mental Health Act.

The Claimant pleaded guilty to criminal charges in respect of the assaults.  He was made the subject of a mental health treatment requirement for three years, under which he would have to submit to treatment as and when required and could be brought back for re-sentencing if in breach. A care plan was drawn up, under which the Claimant would receive monthly injections of his antipsychotic medication and would be supervised daily in terms of taking his antidepressants.

In the meantime, the Respondent carried out its own investigation into the events and commenced disciplinary proceedings. The Claimant did not deny the assaults but explained that the incidents occurred due to an error of judgement in discontinuing his antidepressant medication without medical assistance.  The Respondent had obtained medical reports from Occupational Health and from the Claimant’s treating specialist. The Respondent’s treating specialist said that the Claimant would need to continue with his medication indefinitely and Occupational Health confirmed that the Claimant could not be compelled to take his medication.

The manager who conducted the disciplinary hearing considered that the claimant, in admitting to the assaults, had admitted ‘gross misconduct’.  Coupled with this the Claimant had conceded that he had made an error of judgement in discontinuing his medication.  The manager, therefore, concluded that dismissal was the appropriate sanction, given that there was no guarantee that the claimant would continue to take his medication in the future and would not behave inappropriately towards colleagues.

EAT overturns Tribunal’s decision that dismissal was fair

A Tribunal rejected a claim of unfair dismissal. However, the EAT allowed an appeal against that decision. The reason for allowing the appeal was that the Respondent had put its case on the basis that the Claimant had committed an act of gross misconduct. This implied that the Respondent had concluded that the Claimant had been culpable, in the sense of acting wilfully or in a grossly negligent way.  That being the case, the dismissal would only be fair if the dismissing manager had reasonable grounds for reaching such a conclusion.  The Tribunal had not considered whether there were such grounds in this case; indeed the evidence was that the Claimant had only committed the assaults because of his mental impairment and the Tribunal did not appear to have considered why the Claimant had stopped taking the anti-depressant medication and the degree of his culpability in that regard.  Therefore the Tribunal’s decision that the dismissal was fair could not stand.  The case is now likely to be sent back to the Tribunal either for a fresh hearing or for further submissions to the original Tribunal panel. 


The case illustrates the complexities of dealing with instances of apparent misconduct where a mental impairment could have affected an employee’s ability to control their actions. 

In such cases, difficulties can often be created by the unnecessary use of emotive terms such as gross misconduct. If, in this case, the employer had put its case on the basis that it could not take the risk of a reoccurrence it might have been on safer ground, assuming it had weighed the likelihood of recurrence against the potential consequences.

Burdett v Aviva Employment Services Ltd, EAT, 14 November 2014