Gross Misconduct Justifies Dismissal – But What If an Employee is Disabled?


Workplace misconduct may appear so serious that dismissal is the only option – but it is vital to take into the account the impact that mental health disabilities may have on such behaviour. A case on point concerned a teacher who admitted that he was complicit in an illicit attempt to boost pupils’ marks in a controlled assessment.

At the request of a colleague, who later resigned, the teacher gave pupils taking the GCSE assessment handwritten notes which had been prepared for them to follow and which they copied almost verbatim. A disciplinary hearing before the school’s head ensued and he was dismissed on grounds of gross misconduct.

The man had a history of depression and severe anxiety of which his employer was aware. He said that he had agreed to his colleague’s improper request when feeling overwhelmed. He accepted that he had crossed a moral line but said he felt under extreme pressure to improve his performance. His complaints of unfair dismissal, disability discrimination and a failure to make reasonable adjustments were, however, rejected by an Employment Tribunal (ET).

In ruling on his challenge to that outcome, the Employment Appeal Tribunal (EAT) could find no flaw in the ET’s rejection of his unfair dismissal claim. His appeal in respect of the disability discrimination and reasonable adjustments claims was, however, upheld and a fresh hearing ordered before a different ET.

Whilst acknowledging the gravity of his admitted misconduct, the EAT found that the ET had applied the wrong legal test when assessing whether it had arisen in consequence of his mental health disability. The connection required was a relatively loose one and the ET had set the legal bar too high.

In determining whether his dismissal was a proportionate response to his wrongdoing, the ET also failed to consider with a sufficiently critical eye whether a lesser sanction would have sufficed. Such a lesser sanction would arguably have been a reasonable adjustment taking account of his disability.

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