30 January 2020 #Employment
The Claimant was a Field Engineer who was suspended for breaching his employer’s Health and Safety policy by failing to take safety precautions.
The Claimant stated that the reason for not following policy was that his mind was elsewhere due to an imminent divorce and possibility of custody issues over his daughter. During his suspension the Claimant underwent an Occupational Health review where it was confirmed that he had been experiencing symptoms of ‘reactive depression’.
The Claimant claimed he had told his manager previously about the issues in his home life but had not requested an Occupational Health referral before the incident because he wanted to “keep it to [himself]”. The Claimant had not had any previous disciplinary issues over his 11 years of service and confirmed that his mental health had not affected his work before this incident.
The Claimant was subsequently dismissed for gross misconduct and the employer sought to rely on a number of factors including the following:
- That the claimant had failed to seek support from the company;
- He had worked safely on other site-visits that day; and
- The Claimant’s personal circumstances had been an issue long before the incident in question.
The Tribunal disagreed with the approach taken by Sky-In-Home, instead finding that the Claimant’s depression was a disability and that his dismissal was a clear example of unfavourable treatment arising from a disability. On the matter of whether such treatment could be objectively justified, the Tribunal accepted that protecting health and safety was a legitimate aim but concluded that “...the disadvantage suffered by the claimant in losing his job outweighed the reasonable needs of the respondent’s business”.
This is an interesting case for employers to take notice of. It highlights that whilst employers may find it easy to demonstrate a legitimate aim when health and safety is concerned it must act proportionately. Here, the link between the Claimant’s health and actions was not given proper consideration and it was particularly relevant that the Claimant had expressed his regret over the incident and took responsibility for what had happened, suggesting that he could have been reintegrated into the business with a warning.
For the full judgement click here.