Last month, the case of Burdett -v- Aviva Employment Services Ltd confirmed the premise that the potential reasonableness of an adjustment should be considered fully by a tribunal before determining whether an employer has failed in its duties to a disabled employee.

The Employment Appeal Tribunal (EAT) considered whether the tribunal had been right to decide that a disabled employee, a paranoid schizophrenic, had been fairly dismissed for gross misconduct after he admitted to ceasing to take his medication against medical advice and subsequently sexually assaulting two female colleagues. It also considered whether the dismissal constituted unfavourable treatment because it was linked to his disability. Aviva maintained his dismissal was a proportionate and necessary means for allowing them to achieve their legitimate business aim of maintaining conduct in the workplace and safeguarding its staff.

The EAT found that the tribunal had not given thought to Mr Burdett’s mental state before finding that dismissal was the only appropriate sanction given his admission of guilt; while he had conceded events he had not conceded he was culpable, nor had he been found to have acted wilfully or negligently. The EAT found that this dismissal was unfair and that Aviva had discriminated against him by failing to give thought to alternatives to dismissal, such as allowing him to work from home, to avoid the risk of future recurrence of similar behaviour.

This case reinforces the recent judgment in North Lancashire Teaching Primary Care Trust -v- Mrs L Howorth where we represented the PCT which succeeded in its appeal at the Employment Appeal Tribunal (EAT).

These cases show that it should not be assumed that gross misconduct may always safely result in dismissal. Employers must continue to consider all circumstances of the act, including the culpability of the employee, before decisions are reached. The obligation to consider adjustments remains a priority.