EWJ June 61 2025 web - Flipbook - Page 61
A Health Condition Contributing
to Misconduct is not Necessarily
a Bar to a Fair Dismissal
By Verity Buckingham and Sarah Beeby
An employment tribunal has ruled that an apprentice’s dismissal was fair after he threatened a colleague
who he suspected of tampering with his lunch at work.
The apprentice unsuccessfully argued that his impulsive reaction was caused by his ADHD and therefore
his dismissal was unfair. This decision provides insight
into the tribunal’s approach when an employee is dismissed because of conduct arising from a disability.
Whilst the tribunal judge was prepared to accept that
Mr Hayes’ ADHD had something to do with him
sending the abusive messages and making the threats,
he found that it was not an inevitable consequence of
him having ADHD. The judge also found that the link
between Mr Hayes’ ADHD and him sending the messages did not mean he bore no responsibility for his actions. Mr Hayes did not seek to argue otherwise.
Background
A garage apprentice, Mr Hayes, sent abusive messages
to colleagues and threatened them with personal injury and damage to their possessions after finding his
lunch vandalised. Pranks were commonplace at this
workplace, but Mr Hayes had already received a final
warning in 2021 after his intense reactions to pranks.
The tribunal also considered that the messages were
sent over a period of time (10-15 minutes) and there
was a large number of messages. This weakened Mr
Hayes’ argument that the messages were an impulsive, “heat of the moment” reaction caused by his
ADHD.
As a result, the tribunal found it was within the range
of reasonable responses for the garage to dismiss Mr
Hayes and the dismissal was therefore fair. Mr Hayes’
claims of disability discrimination also failed. The tribunal was satisfied that dismissal was a proportionate
means of achieving the legitimate aim of protecting
staff from aggressive and threatening behaviour.
The garage suspended the apprentice pending an
investigation. Mr Hayes told the investigating manager that he had ADHD. The garage obtained an occupational health report before holding a disciplinary
hearing. The occupational health report advised the
garage to consider the possibility of Mr Hayes having
interpersonal communication deficits as a contributing or mitigating factor in the disciplinary process, but
confirmed that the condition did not impair his ability to know right from wrong. The disciplinary manager took into account the fact that Mr Hayes had
ADHD, but still considered that the repeated threats
amounted to gross misconduct and that his ADHD
was not sufficient mitigation to avoid dismissal.
Key takeaways
In similar situations, it is sensible to ensure you have
medical or occupational health advice on the impact of
the health condition on the individual’s behaviour.
You should then weigh up any mitigation the health
condition might provide, with all the other factors. It
is helpful to see from this case that a tribunal will apply
a common-sense approach and that the existence of a
health condition which may have contributed to misconduct is not necessarily a bar to a fair dismissal in
appropriate circumstances.
Employment tribunal decision
Mr Hayes argued that his impulsive reaction was
caused by his ADHD and brought various claims
against the garage, including for unfair dismissal and
disability discrimination.
Dr Giles Elrington
General Neurologist - MBBS (Hons), MD, FRCP
Dr Giles Elrington is a General Neurologist with special interest in clinical neurology, headache, multiple
sclerosis, migraine and neuropsychiatry, functional neurological disease & chance findings on imaging.
He regularly manages other common neurological diseases including epilepsy, Parkinson's disease, spinal and
peripheral nerve disease.
Dr Elrington's key skills are in clinical diagnosis, and medical management. He qualified in 1980 from Barts, with
honours in Surgery and in Clinical Pharmacology.
Dr Elrington accepts medico-legal instruction in personal injury, medical negligence, family & employment cases.
Dr Elrington consults at:
The Zen Clinic, 143 London Road, Tollgate, Colchester, Essex, CO3 8NZ
Spire Wellesley, Eastern Ave, Southend-on-Sea, SS2 4XH
10 Harley Street, London, W1G 9PF
Correspondence address: 44 Lexden Road, West Bergholt, Essex, CO6 3BX
Contact: Nicola Burke - Medical Legal PA to Dr G Elrington
Tel: 07752 872 764 - Email: elringtonmedicallegalpa@gmail.com
EXPERT WITNESS JOURNAL
59
JUNE 2025
