In a gross misconduct case, relying on a zero tolerance policy to dismiss an employee, without taking mitigating factors into account, may well result in unfair dismissal and/or discrimination.
Miss Martin was employed by the Home Office in its Visa and Immigrations Section. Over a prolonged period, she suffered distressing events in her personal life. Her relationship with her partner (who was applying for leave to remain in the UK and whose father and sister were applying for entry visas) broke down acrimoniously. Her father was also investigated for historic sex offences, which was a process that put pressure on Miss Martin and caused her great anxiety. During this time, Ms Martin also suffered suspected lung cancer or tuberculosis (though after investigation it transpired that she did not have either condition) and a miscarriage.
After their relationship had broken down, Miss Martin’s former partner threatened to complain to the Home Office that Miss Martin had blocked his application for leave to remain and his father’s and sister’s visa applications. Because of this, on several occasions, she searched the Home Office database for information about all three of them. These searches were picked up by the Home Office and a disciplinary investigation followed.
The Home Office had a policy of zero tolerance in relation to breaches of data security. Searches of the database for non-business reasons were categorised as gross misconduct. This zero tolerance was a change in policy, which came into force around the time when Miss Martin was conducting searches on the database. Prior to this, breaches of security and the data policy were treated as either serious misconduct or gross misconduct, depending on the particular circumstances. A message announcing a “zero tolerance policy on misuse of Home Office IT systems” was published on the intranet, but the policy itself was not issued until much later.
A Home Office policy on dealing with mitigating factors in disciplinary decisions stated that “Consideration of mitigating factors is of particular importance, particularly in cases where dismissal is a potential outcome”, and sets out a non-exhaustive list of mitigating factors, including disability, exceptional pressure on the employee and personal trauma. This guidance section concludes with “Mitigation is not simply about one of the above existing but for it to have had a material impact on behaviour”.
During a disciplinary investigation, Miss Martin was referred to Occupational Health. The OH report said that she had been experiencing a low mood for some time and that her judgement might have been impaired by the underlying low mood. Occupational Health considered that her condition was likely to constitute a disability.
Following a disciplinary investigation and hearing, Miss Martin was summarily dismissed for gross misconduct. The decision maker said that he had considered the evidence she gave in mitigation (including in relation to her health and personal circumstances), but did not consider that these factors had “directly caused” her to commit data breaches or that they justified her actions.
Miss Martin unsuccessfully raised an internal appeal. Miss Martin again raised mitigating factors, which were considered by the appeal decision maker. The decision maker accepted that these factors might have impacted on Miss Martin’s judgement, but concluded that mitigating factors had been properly considered during the decision to dismiss.
Miss Martin brought claims of unfair dismissal, failure to make reasonable adjustments, and discrimination because of something arising in consequence of a disability. All claims were dismissed. However the employment tribunal commented that this was a very hard decision, and that dismissal in this case was “at the very extreme limit of what a reasonable employer would do”, even though the dismissal was not unfair.
Miss Martin appealed the decision in relation to unfair dismissal and discrimination because of something arising in consequence of a disability.
The EAT agreed with Miss Martin’s argument that the decision makers had considered whether the mitigating circumstances she had raised had directly caused her to commit data breaches (and decided that they had not done so). They had therefore used a test of direct effect. However, the Home Office policy refers to a “material impact”, which is a looser causal test than “direct effect”. The distinction between these two tests, the EAT held, was not considered at either stage of the Home Office’s procedures or by the employment tribunal itself. The EAT considered that, had the employment tribunal done so, it might (particularly in light of its comment that the case was “at the very extreme limit of what a reasonable employer would do”) have come to a different decision on the reasonableness of the dismissal. The EAT also upheld Miss Martin’s arguments that the employment tribunal had wrongly applied a perversity test to the question of whether the Home Office had taken reasonable steps to communicate the zero tolerance policy to her. It also held that the employment tribunal had made errors of fact in its consideration of the medical evidence which were relevant to the issue of material impact in the unfair dismissal claim, and to the “relatively loose” causation test in the discrimination arising from disability claim.
The case was remitted to a fresh employment tribunal.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This is a reminder to decision makers that it is important to consider carefully and take into account the detail of policy wording. It is also a reminder that, even where a supposedly “zero tolerance” policy exists, employers should still take mitigating factors into account. Finally any approach set out in a disciplinary policy, whether “zero tolerance” or not, must be clearly communicated to employees.