Siobhan Murphy
Posted on 22 Sep 2020

Employer must take into account mitigating factors when considering if gross misconduct is an appropriate sanction

Speed Read

The Employment Appeal Tribunal held that, even where an employee was in breach of a zero tolerance policy, an employer must take mitigating factors into account when considering whether to dismiss. In the absence of such consideration, the decision to dismiss may give rise to a claim of unfair dismissal and/or discrimination.

[Read time: 5 minutes]

Miss E Martin v Home Office UKEAT/0046/19/AT

The Facts

The Claimant was employed by the Home Office. Between November 2012 and January 2013, the Claimant suffered a series of significantly difficult and stressful events in her personal life. Her father had been the subject of a prolonged police investigation for historic sexual offences and she suffered anxiety through worrying about the ways in which this may impact her job with the Home Office. In addition, her relationship with her fiancé had broken down and he threatened to complain to the Home Office that she had blocked his application for indefinite leave to remain in the UK. At the same time, the Claimant underwent investigation for potential cancer, which caused further anxiety.

Given her fiancé's allegations, the Claimant had made numerous unauthorised searches of his immigration application on the system, which were picked up by the Home Office's security software. There was a strict zero tolerance policy in place in respect of database abuse, which stated that "inappropriately looking up information is considered gross misconduct". However, the policy also stated that “consideration of mitigating factors is of particular importance, particularly in cases where dismissal is a potential outcome”. Examples of mitigating factors, included disability, exceptional pressure on the employee and personal trauma. The guidance section concluded with “mitigation is not simply about one of the above existing but for it to have had a material impact on behaviour”. The policy had been introduced by a message on the intranet in 2013.

The Home Office commenced a disciplinary investigation in respect of the Claimant's actions, during which the Claimant was referred to a Consultant Occupational Physician. The report suggested that the security breach was the final straw in a number of events that had been impacting very significantly on the Claimant's psychological health, and her condition was likely to constitute a disability. In the light of this, the investigation report recommended that compelling mitigating factors should be carefully considered.

On 5 September 2014, despite the recommendations from the Physician, the Claimant was summarily dismissed. The Home Office found that her breach constituted gross misconduct and, after consideration of the material factors to which the Claimant referred, determined that it was not established that they had been directly causative of her behaviour. The Claimant subsequently brought claims of unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability.

What is unfair dismissal?

To summarise, where an employee with the requisite qualifying service is dismissed, the dismissal will be unfair unless:

  1. the employer shows that the dismissal was for a potentially fair reason, such as conduct or capability; and
  2. a Tribunal decides that, in the circumstances, the employer acted reasonably in treating the potentially fair reason as a sufficient reason for dismissal.

Under (ii) above, it is a long established principle that an Employment Tribunal (ET) must assess objectively whether the dismissal fell within the range of reasonable responses available to the employer. The ET is not permitted to substitute its own view as to whether or not it would have dismissed the employee if it had been in the employer's shoes. For more information on unfair dismissal, please see our article here.

What did the ET decide?

The ET dismissed all of the claims. It found that the decision to summarily dismiss was within the range of reasonable responses. The Claimant appealed the decision to the Employment Appeal Tribunal (EAT) on numerous grounds, including that the ET (i) misinterpreted the Home Office's policy; (ii) applied the incorrect test when considering if the Home Office had taken reasonable steps to bring the policy in question to the Claimant's attention; and (iii) wrongly concluded that there was no medical evidence to the effect that the Claimant's condition was not directly causative of her behaviour.

What did the EAT decide?

The EAT allowed the appeal. The ET had misinterpreted the Home Office’s zero tolerance policy as requiring any mitigating factors to be a direct cause of, rather than having a material impact on, the misconduct in question. As such, the ET wrongly required a stricter causation test of direct cause and effect between any mitigating factors and the misconduct for them to qualify as having any impact on the decision to dismiss. The EAT held that this was a potentially important distinction on the facts and considered that, had the correct test been applied, the ET’s decision on the reasonableness of the sanction of dismissal would or might have been different.

The EAT also upheld various other arguments put forward by the Claimant, including that the ET had wrongly fallen into the error of applying a perversity test when addressing whether the Home Office had taken reasonable steps to communicate the zero tolerance policy. Such a test required such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss could be held to be unfair. It has also made errors of fact and explanation in its consideration of medical evidence, which were relevant to the claims. The case was remitted to a fresh Tribunal.

What Does This Mean For Employers?

This judgment emphasises various important steps for employers to consider when introducing new policies, including to ensure that such new policies are adequately communicated to employees. Whilst uploading policies onto the intranet may be sufficient in some circumstances, employers may wish to consider taking additional steps to notify employees, for example, sending a company-wide email. This will be even more important where the policy includes clauses that impact the circumstances in which an employee can be summarily dismissed.

In addition, the judgment serves as a reminder to consider policy wording carefully when taking it into account, particularly when relying on such wording to take a decision to dismiss for gross misconduct. Mitigating factors should also be fairly considered in all circumstances. There is always a risk that various factors could be linked to a disability and an employer risks discriminating against an employee if it neglects to pay proper attention to these points. As demonstrated here, both of these factors could have a substantial influence as to whether an employer's decision is seen to fall in the range of reasonable responses.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy or Rachael Lloyd to discuss any issues you are facing.