Mentally Ill Employee dismissed for Assault on Colleagues: Fair Dismissal?

The key questions in the case of Burdett v Aviva Employment Services Ltd UKEAT/0439/13 were:

1. Whether the gross misconduct dismissal of an employee with paranoid schizophrenia who sexually assaulted female colleagues was unfair; and
2. Whether the dismissal amounted to disability discrimination.

The Employment Appeals Tribunal (“EAT”) answered both questions with a resounding “not so sure” by finding that the tribunal had failed to:

1. Take the employee’s mitigating circumstances into account and give proper consideration to the issue of the employee’s culpability; and
2. Consider whether the dismissal was proportionate for the purposes of achieving the employer’s business aim of setting appropriate standards of conduct.

When dealing with a mentally ill employee, the employee’s culpability requires careful consideration by an employer. The EAT has invited the parties to make further representations.

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