City of Edinburgh Council v Dixon EAT 0038/09

D was employed as a learning and development worker at a community wing of a school. He had type 1 diabetes. A disciplinary investigation revealed that he had been watching pornographic images and that he had visited an inappropriate website. D said he had no recollection of either incident and that his behaviour must have been a result of his diabetes. The council’s occupational health doctor who had examined D indicated that his behaviour could have been caused by a hypoglycaemic episode but that there was no evidence to indicate whether or not it had been.

The council concluded that his actions were conscious and they summarily dismissed him. The Tribunal upheld his claim for unfair dismissal holding that the council had come to a decision that no reasonable employer could have reached. The council appealed to the EAT who upheld the Tribunal’s decision. The council had failed to take his explanation seriously. This was sufficient to find it was an unfair dismissal.

The EAT concluded that if the council had conducted a proper investigation on the balance of probabiltiies it would have accepted his explanation and dismissed the charges. However, the EAT found that the dismissal did not amount to disability discrimination. [Continued over the page].

Key point: Employers should remember that where an employee has been dismissed for misconduct a Tribunal hearing an unfair dismissal claim must ask whether the employer genuinely believed that the employee was guilty of the misconduct in question, had reasonable grounds for that belief, and carried out a reasonable investigation. In a similar type of case independent medical advice should be obtained so an objective examination of the facts can be made.