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Gross Misconduct – A Forbidden Act May Not Be Enough to Justify Dismissal

Gross Misconduct – A Forbidden Act May Not Be Enough to Justify Dismissal

When considering allegations of workplace gross misconduct, it is often not enough simply to establish that a forbidden act occurred, without going on to discern the reasons for it and whether those reasons are linked to a disability. A tribunal made that point in finding that a diabetic lorry driver was unfairly dismissed after he was caught on CCTV urinating in a goods yard.

lorryThe driver said that, as a result of his condition, he had been caught short and had tried to find a discreet part of the yard in which to urinate. He expressed regret but was dismissed after the CCTV footage revealed what he had done. The manager who investigated the matter conceded that he had concluded that the driver was guilty of the act in question, but had gone no further.


In upholding the driver’s unfair dismissal claim, an Employment Tribunal (ET) found that the investigation of the incident was neither impartial nor fair. The inadequacy of the manager’s inquiries had not been cured by the subsequent disciplinary process and the employer, a supermarket chain, had not held a genuine and reasonable belief that the driver was guilty of the misconduct alleged. His disability discrimination claim also succeeded on the basis that he had told his employer of his disability, a recognised symptom of which was an uncontrollable urge to urinate. The ET directed the driver’s reinstatement in his former role.


In challenging the ET’s decision, the employer argued that the CCTV footage clearly showed the driver urinating on pallets used for the delivery of customers’ shopping. The ET’s failure to find as much led to fatally flawed reasoning throughout its ruling and a perverse conclusion. The ET was also said to have been guilty of substituting its own views of the driver’s misconduct for those of the employer.


In dismissing the appeal, however, the Employment Appeal Tribunal rejected the employer’s plea that the evidence that the driver had urinated on the pallets was incontrovertible. The ET’s finding that the operative cause of the act of urination was his disability was not challenged and there was simply no basis for the perversity and substitution mindset arguments. The ET’s conclusion that trust and confidence between the employer and the driver was capable of being restored, thus enabling his reinstatement, was also unimpeachable.