Labour & European Law Review Weekly Issue 393 29 October 2014
Section 15 of the Equality Act states that it is discriminatory to treat an employee unfavourably because of something arising from their disability. In Hensman v MoD, the Employment Appeal Tribunal overturned a finding that an employee with Asperger’s Syndrome who was dismissed for covertly filming a colleague had suffered discrimination arising from his disability.
Mr Hensman, who was employed in a civilian capacity by the MoD, lived in shared accommodation provided by his employer. He was diagnosed with Asperger’s syndrome in 2005.
In September 2008 his employer suspected a security breach by Mr Hensman and, on searching his accommodation, found a tape recording and stills of a colleague who was naked. He was subsequently arrested and pleaded guilty to an offence of outraging public decency in July 2010. At the sentencing hearing the judge accepted that Mr Hensman had Asperger’s syndrome and other mental disorders. He also accepted that there was a link between his disorders and the recording and that he was “not at fault” for the offence.
Mr Hensman subsequently attended a disciplinary hearing in November 2011 and was dismissed from his job for gross misconduct on 31 May 2012. Mr Hensman brought claims for unfair dismissal and discrimination arising in consequence of his disability.
The tribunal held that the decision to dismiss fell outside the band of reasonable responses. This was firstly because of the delay in the dismissal process; and secondly because although employers are entitled to rely on a conviction as evidence of an offence, they cannot be said to be acting reasonably if they ignore the sentencing judge’s remarks that the offence did not involve fault.
It also found that the decision to dismiss amounted to unfavourable treatment because of something arising as a consequence of Mr Hensman’s disability. Although there was no evidence that people with Asperger’s syndrome have a propensity to carry out criminal acts compared with others who do not, the judge’s sentencing remarks had to be taken into account. In other words, that the offence stemmed from his condition.
In considering whether the decision to dismiss was proportionate the tribunal held that the MoD had the legitimate aim of maintaining standards of conduct in the workplace. However, dismissal was not a proportionate means of achieving the aim, taking the following into account:
- the fact that the criminal conduct occurred more than six years before Mr Hensman was dismissed
- the MoD’s stated policy that a finding of gross misconduct may not be the right outcome when there is a finding of diminished mental competence
- the medical evidence which stated Mr Hensman had learned from his mistake
- the fact that he had moved into single accommodation and had worked for the MoD all his life.
The tribunal did, however, reduce his compensation by 25 per cent on the basis that he had contributed towards his dismissal because of his confusing account of events at the disciplinary hearings.
The EAT held that the tribunal had failed to carry out the correct balancing exercise when it held that his dismissal was not proportionate under section 15. In particular it had failed to take into account the particular considerations weighing on the MoD’s mind which were not confined to the fact of a criminal conviction but also about a breach of trust and covert conduct.
In terms of the claim for unfair dismissal the tribunal had also substituted its own view when assessing the reasonableness of the dismissal. In particular, it had focused on the judge’s sentencing remarks whilst ignoring the employer’s concerns.
The EAT remitted the case to a fresh tribunal to consider whether dismissal was objectively justified under section 15 and if it was within the band of reasonable responses in respect of the claim for unfair dismissal.