An employee, who was caught viewing pornographic material whilst at work, was held to have been unfairly dismissed by the EAT, due to his employer's failure to investigate the employee’s defence that his conduct was a result of a hypoglycaemic episode.
In The City of Edinburgh Council v Dickinson, D who suffered from diabetes, was employed as a community learning and development worker based in a school. D was caught viewing images of a 'serious pornographic' nature on his computer. D claimed that he had no recollection of the incident and that this out-of character behaviour must have resulted from a hypoglycaemic episode. At the time D’s diabetes was not properly controlled due to D being prescribed with the wrong strength insulin. D’s explanation was not accepted by the council and he was summarily dismissed for gross misconduct. D brought proceedings against the council for unfair dismissal and disability discrimination and won at the ET. The council appealed.
The EAT upheld the ET’s decision that D had been unfairly dismissed on the basis that the council had made no attempt to investigate properly or 'engage with' D’s explanation that his conduct was a result of his medical condition and consequently they did not have reasonable grounds for their belief that D was guilty of gross misconduct. The EAT also upheld the ET’s order that D should be re-instated to his position with the council.
Best Practice
Although the facts of this case are somewhat unusual it does highlight a well established legal principle that when an employer is making the decision whether to dismiss an employee for gross misconduct they should:
- hold an honest belief that the employee is guilty of the offence
- have reasonable grounds for holding that belief
- those beliefs should be based upon a reasonable investigation of the incident, which would include hearing and engaging with the employee's explanation.
If you require advice on how to manage an alleged incident of gross misconduct, please contact Alison Graham on 0117 314 5304.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
