Can a disability account for bad behaviour?
A recent Employment Tribunal decision serves as a timely reminder that where conduct issues are said to arise from an underlying mental health condition, employers should be cautious of departing from medical opinion.
Ms Wheeley was a long-standing employee of University Hospitals Birmingham NHS Foundation Trust and held a senior management role. She had suffered from recurring periods of depression, managed by medication, since she was a teenager but this had not led to any absences from work. The Trust was unaware of any mental health concerns until the disciplinary process at the heart of this case was underway.
Ms Wheeley had a clean disciplinary record but she had been a challenging employee. Her behaviour was difficult and inappropriate at times, such as banging her fists on the table or walking out of meetings. However, this behaviour was not formally addressed by the Trust and there was no suggestion that it was related to her health.
In May 2015 Ms Wheeley learned that her department was to be restructured and she made clear her hopes for a promotion. Following the restructure, she was unhappy about a number of matters, including that she was not promoted, and she sent an email to the medical director in which she refused to report to a new line manager. She also threatened to write to her team “informing them that the announced change would not be happening and why”. She was given an express management instruction not to do so.
Despite this instruction, Ms Wheeley later responded to a group email which included members of her team and the Trust’s executive directors stating that she had not been aware that communication about the restructure would be sent and that she was “considering her position”.
Ms Wheeley was suspended for responding angrily, failing to follow a management instruction and communicating and acting inappropriately. An investigation commenced, following which an additional allegation was added because Ms Wheeley went to the medical director’s house outside working hours in an attempt to discuss the issues. Ms Wheeley accepted she should not have done so and apologised, but largely sought to justify her other actions throughout the course of the investigation. She also reported symptoms of stress and depression and the disciplinary hearing was postponed because she was deemed unfit to attend.
Ms Wheeley remained unrepentant and issued a lengthy grievance. She also changed her trade union representative, at which point concerns about her mental health were raised. Ms Wheeley was referred to Occupational Health, who subsequently referred her to a psychiatrist. The psychiatrist was unable to reach a definitive conclusion about whether or not Ms Wheeley had bipolar disorder but he felt it was “certainly possible”.
Shortly after the grievance was heard (her complaints were rejected), Ms Wheeley made a private appointment with another consultant psychiatrist, who felt that a bipolar diagnosis was not supported. Occupational Health later arranged a referral to an independent psychiatrist, Professor Oyebode.
Professor Oyebode reported that Ms Wheeley presented with the cardinal features of bipolar disorder and took the view that there was clear evidence of periods of depression and mania. He reported that it is well recognised, in manic phases, that people can exhibit behaviours that are out of character and which demonstrate irritability, hostility, recklessness and poor judgement. He referenced Ms Wheeley’s threatening and insubordinate emails and said she regretted these behaviours and considered them to be out of character. Professor Oyebode’s opinion was that Ms Wheeley was in a manic phase during the period in question and that her behaviour, which formed the basis of the disciplinary allegations against her, was compromised by severe mental illness.
The Trust’s disciplinary panel considered this opinion in the context of mitigation but was not convinced that Ms Wheeley’s behaviour had been out of character, due to the history of her challenging behaviour. The allegations were therefore upheld and Ms Wheeley was dismissed for gross misconduct.
She brought a claim for unfair dismissal and discrimination arising from disability in the Employment Tribunal. The ET found that absent any mitigation, Ms Wheeley’s behaviours amounted to “gross insubordination on a grand scale”. It also found that notwithstanding her long service and clean disciplinary record, dismissal would ordinarily have been well within the band of reasonable responses.
However, the ET went on to find that the disciplinary panel had departed from the medical opinion of Professor Oyebode by essentially finding that Ms Wheeley’s mental health did not substantially cause or exacerbate her misconduct, since the behaviours were not seen to be out of character. The Trust had reached this conclusion without raising further questions with Professor Oyebode and it could not produce cogent evidence before the ET that Ms Wheeley’s mental health had played no more than a trivial part in the events under consideration. The ET therefore determined that her condition did in fact have a significant impact on her actions, which arose in consequence of her disability.
The ET went on to consider the Trust’s justification for its actions and agreed that its aims had been legitimate. However, it found that summary dismissal had not been a proportionate response in circumstances where the Trust had simply rejected a key medical finding that Ms Wheeley’s actions were compromised by severe mental illness. This had been unreasonable and the ET concluded that no reasonable employer would have done so.
Ms Wheeley therefore succeeded in her claim, but her compensation was reduced by 25 per cent to reflect her contributory conduct.
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