Facts
In The Governing Body of Hastingsbury School v Clarke, the employee, a teacher, was suspended following allegations made by some pupils and colleagues of bizarre and intimidatory behaviour, some of it sexual in nature.
Some of the complaints were referred to the police but no proceedings were instituted. Some colleagues, including the Headmaster and Mr Clarke’s trade union representative, suspected Mr Clarke was ill but he denied he was.
The school’s HR adviser told the school’s Governors they should refer him for a medical and the Headmaster wrote to Mr Clarke explaining HR’s advice. But before the referral was made, the Governors dismissed Mr Clarke for gross misconduct.
Tribunal decision
The tribunal found the dismissal unfair on procedural grounds. First, the employee was not told the disciplinary process had been resumed and he was neither present nor represented at the hearing. Second, it held that it was outside the band of reasonable responses in these circumstances to follow the misconduct rather than capability route to dismissal.
Crucially, the tribunal then refused to make a ‘Polkey deduction’ in the calculation of compensation. This meant it declined to consider what the chances of the employee being dismissed anyway would have been even if the School had followed the correct procedure.
EAT rules dismissal unfair…
On appeal to the EAT the school lost on liability for unfair dismissal but won the argument on compensation. The EAT held that it was open to the tribunal to find that a reasonable employer would not have dismissed for gross misconduct in these circumstances without at least taking steps to investigate whether there was a medical cause that could have been treated.
The EAT said the tribunal were plainly right to hold that no reasonable employer would have treated the question of health wholly independently of discipline, as the Governors had done.
…but agrees compensation should be limited
The EAT did agree with the school that the tribunal had been wrong in not making a Polkey deduction. The tribunal had seen a psychiatric report which said the employee was suffering from symptoms related to a psychotic illness that would always be present under stress. In these circumstances it was inconceivable the school could have risked a recurrence of such behaviour.
The EAT thought it would have taken 10 weeks to follow a fair procedure; it reduced the compensation to a basic award and 10 weeks’ net pay.
Comment
This case illustrates that it is important to follow the correct procedure when dismissing employees. Having chosen the wrong procedure the school was, therefore, fortunate that when the medical position was established, after dismissal, it was favourable to the employer. Even though Mr Clarke’s dismissal was unfair, his compensation was limited as the EAT accepted the school would have dismissed him anyway given the vulnerability of its pupils.
However, it is obviously less risky for employers to establish the medical position before dismissal if there are reasons, as in this case, to suspect that the employee’s misconduct is connected with illness.
It may also be more difficult for employers outside of education, social services etc, to establish that dismissal was inevitable. In such circumstances the employer risks not only a successful unfair dismissal claim with significant compensation but also, depending on the medical condition, a disability discrimination claim.
We suggest, therefore, that if you have any reason to suspect an employee’s behaviour may be related to a medical condition you refer the employee for a medical opinion quickly.
For further information on how to make an effective request for a medical report see EEF’s Managing Sickness Absence Toolkit.