Health and Safety Dismissal amounted to Discrimination

During a routine unannounced inspection of his work, a Sky engineer was seen working at the top of a ladder without any safety equipment, having not secured the ladder properly. He was told to stop working and he was invited to a meeting later that day. At the meeting the employee admitted the health and safety breach but stated his mind had been elsewhere as he was not only going through a divorce but his partner and daughter were moving out of his home on the day in question. He was suspended told that his actions would likely amount to gross misconduct.

The employee visited Occupational Health during his suspension and it was confirmed he had been suffering symptoms of “reactive depression”. He was signed off as unfit for work.

The engineer was dismissed following a Disciplinary Hearing. The company stated he had worked safely on other jobs that day; his personal circumstances had continued long before the day in question; he had failed to seek support from his GP or the company; and he would have been aware of the mental health support the employer offered.

The employee appealed on the basis that the company had a lack of consideration of his mental health which amounted to discrimination under the Equality Act 2010 and that his unblemished 11-year service should have highlighted that his behaviour on the day was out of character.

Following a tribunal hearing, the employment judge determined that the employee’s mental health condition had affected his ability to carry out normal working activities and the condition was likely to recur beyond 12 months, which would categorise him as disabled under the Equality Act 2010.

This case highlights the need for employers to take extenuating circumstances into account prior to taking a decision to dismiss.

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