Employee Dismissed After A Near-death Experience

I am sure that lots of us would hope that, following a near-death experience, our employers may be a little more sympathetic about having a short amount of time off. Well, not in this case!

Background

On the 23 April 2022 (a Saturday) Ope Ajanaku attended his brother’s wedding and accidentally ate food that had a peanut-based spice (which he was allergic to). This resulted in him going into anaphylactic shock and requiring him to be rushed to the resuscitation department of the local hospital. He was discharged and told to take five days of rest and a course of medication at home.

On the following Monday (25 April 2022), he messaged his employer, Monsas, and informed them of what had happened. When he returned to work, they requested that he provide medical certificates regarding his time off, which he refused to do. Ope was subsequently invited to a meeting on the 6 May 2022 which was an investigatory meeting. However, this became a disciplinary hearing which stated that Ope had until 6 May 2022 to produce his sick note, which he omitted to do.

Ope was dismissed for gross misconduct by way of a letter dated 10 May 2022. The basis was that he had failed:

“to comply with a reasonable management instruction, after a period of poor work performance and not being contactable”.

Ope brought a myriad of claims:

1. direct discrimination
2. indirect discrimination
3. discrimination arising from a disability
4. failure to make reasonable adjustments
5. victimisation
6. harassment
7. breach of contract for notice pay
8. holiday pay
9. unfair dismissal

Outcome

Quite a lot of claims for a matter with such few facts!

The claim for unfair dismissal was withdrawn and out of the remaining claims, only the claims for discrimination arising from a disability and the notice pay claim succeeded.

The Tribunal found that his failure to provide the medical certificate was not an act of gross misconduct, based on his belief regarding the ACAS guidance and Monsas’ failure to bring their sickness absence policy to his attention.

The Tribunal found that Ope’s Anaphylaxis was a disability and that the following arose from his disability and which he had been discriminated against on:

1. his absence; and
2. the requirement to attend an investigatory meeting which turned into a disciplinary meeting. The matter will now be considered for compensation.
   

Takeaways for employers

This case is a useful reminder of the following:

1. If you have policies and a handbook, ensure that they have been brought to your workforce’s attention so that they know what is expected of them and what you can ask for.
   
   
2. Where disciplinary action is considered:
   a. if it is because the individual has failed to follow a procedure, make sure you follow the disciplinary procedure and do not just convert meetings to disciplinary hearings;
   b. consider conducting an investigation which may unearth information you had not considered; and
   c. remember that the invitation letter to the disciplinary hearing is extremely important and should set out, amongst other things, the allegations, the right to be accompanied and the possible consequences.
   
   
3. Where there are performance issues, make sure that you raise these with your workforce, in line with any policy you have in place, such as a capability policy.
   
   
4. Once you have decided on a course of action, do not mix up processes and/or rely on matters that have either not been raised with the individual and/or have not been investigated.
   
   
5. Where there is a potential disability and/or medical information, ensure that you obtain this before making your decision. 6. Be reasonable. When you are reasonable you will consider more options. The main reason that Monsas lost this claim is because of their unreasonableness. Had they considered alternatives, they could have thought of what their legitimate aim was and what would be proportionate in achieving that aim. This, in itself, would have given them a defence to the discrimination claim and would have likely meant they did not dismiss summarily, which means they would not have to pay notice pay