Employer duty to conduct thorough investigation

April 28, 2010

In the legal case of City of Edinburgh Council v Dickson it underlines the importance for employers to conduct a thorough investigation before dismissing employees who have claimed their disability as a reason for transgressing behavioural codes. Under the DDA95, Alistair Dickson, who has Type 1 diabetes, is seen as being disabled.

After a complaint that Dickson had been seen viewing pornographic material on his computer in 2007, he was suspended by City of Edinburgh Council. At a hearing, Dickson said he had no memory of viewing the images and his conduct was caused by a hypoglycaemic episode relating to his type-1 diabetes. This argument was rejected by the council, he was dismissed for gross misconduct. A claim for unfair dismissal and disability discrimination was issued by Dickson.

At an employment tribunal it was seen that the council had failed to “engage” with Dickson’s defence and properly consider the arguments, if it had done so it would have accepted the decision of the council.

The tribunal ordered the Dickson be reinstated and be paid £25,000 in compensation.

The council appealed, the Employment Appeal Tribunal (EAT) agreed that Dickson’s dismissal had been unfair and that his reinstatement was appropriate. The tribunal held that the council had failed to take proper steps to understand Dickson’s explanation or the medical evidence available in support of that explanation. However, applying the House of Lord’s decision in Lewisham v Malcolm, the tribunal overturned the tribunal’s decision that Dickson’s dismissal amounted to disability discrimination. The EAT held that the council’s rejection of Dickson’s explanation was not due to the fact that he was disabled, or for a reason related to his disability, but was because they did not believe him. The EAT said that it was necessary that the disability should be at least part of the reason for that rejection for it to amount to discrimination.

According to Chris Bains, solicitor at Thomas Eggar, the case demonstrates that while ignoring a disability-related explanation does not necessarily mean that the dismissal is discriminatory, it is likely to make the dismissal unfair.