Over the years we have covered a number of cases which show that an admission of misconduct by an employee is no guarantee that the resulting dismissal will be fair – it is always necessary to consider the surrounding circumstances and any mitigating factors.  Burdett v Aviva Employment Services Ltd is another, albeit unusual, example.

The claimant, who had been diagnosed as suffering from a paranoid schizophrenic illness, was dismissed from his job as a senior approval specialist in a large insurance company for gross misconduct after he admitted committing assaults at work.

According to the tribunal hearing his unfair dismissal and disability discrimination claims, the claimant had admitted gross misconduct as well as the assaults themselves and had also said that he had committed a "serious error of judgment in discontinuing his medication without medical advice".  As a result, the tribunal concluded that, as the claimant had openly admitted his misconduct, very little investigation had been called for; clearly the employer had reasonable grounds for its belief and dismissal was within the range of reasonable responses available to the employer.

All very straightforward, one might think, but the claimant appealed successfully against the tribunal's decision.  In short, the tribunal had not drilled down into the facts in sufficient depth.

The evidence was that the claimant had only committed these assaults because of his mental impairment.  His admission was that he had carried out the assaults, not that he was guilty of wilful misconduct.  Given the unusual facts, the tribunal needed to do more than simply consider whether there were reasonable grounds for deciding that the claimant had carried out the misconduct; it also had to engage with the issue of culpability and ask whether there were reasonable grounds for concluding that he had done so "wilfully or in a grossly negligent way".

The claimant was also successful in his appeal from the tribunal's rejection of his claim of discrimination arising from a disability.  Although the employer had a perfectly legitimate aim in wanting to maintain appropriate standards of conduct in the workplace, the tribunal had failed to demonstrate that it had properly scrutinised the means chosen by the employer to achieve that aim (dismissal).  According to the EAT, given that the dismissal was devastating for the claimant, particularly given the nature of his disability, the tribunal should have made a critical evaluation of both the impact of dismissal on the claimant and the possible alternatives suggested by the claimant, such as home-working.