In the case of Metropolitan Police Commissioner & Others v Eioyaccu, the Employment Appeal Tribunal (EAT) held that a tribunal had been wrong to find an employee’s dismissal unfair, primarily on the basis that the employer ought to have investigated his mental health issues before dismissing him for gross misconduct.
The employee, a police community support officer, harassed the manager of a store and displayed “bizarre” and aggressive behaviour towards the public while carrying out his duties. His employer invoked the disciplinary procedure, as a result of which he was dismissed for gross misconduct.
While the employer had on two occasions attempted to refer the employee to its occupational health department for assessment of his mental health, the employee did not agree to being referred.
The tribunal found that:
“inherent in the disciplinary charges… was the unspoken assertion that he had committed the acts alleged against him consciously and knowingly, or at the very least recklessly”
and, therefore, dismissal without obtaining a medical report into his mental health rendered the dismissal unfair.
The EAT disagreed, endorsing the employer’s approach that what was relevant was whether the misconduct was committed, not the mental capacity of the employee.
In any event, the employer had clearly considered the potential relevance of the mental health issues here (by attempting to obtain a referral) and the fairness of the dismissal might have been affected if it had not done so.
Normally the employer is under a duty to consider the fairness of the dismissal in all the circumstances, which means that it will usually have to consider whether the misconduct is related to any health. However, this is an example of a case where the employer was entitled to dismiss where it was not in a position to do this.
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