The most likely reaction to a newspaper headline “Binned sausage rolls served to first class train passengers” would be to expect an article about an aggrieved traveller who had forcefully complained to the train company and demanded the steward’s head on a plate. Not one about a steward claiming unfair dismissal and disability discrimination for doing exactly that. Think again…
Mr Duffy, the dismissed steward, initially based his claim against LNER on his belief that he had been unfairly dismissed for another reason. He had asserted that he had no recollection of salvaging and serving the scrapped sausage rolls. However, this was at odds with relying upon his disability – anxiety and depression – as a reason for excusing that very act. He then sought to reconcile this contradiction by claiming his act was not blameworthy and should not have led to his dismissal. How did he get on?
The tribunal decided that there was no doubt that the dismissing officer honestly believed that Mr Duffy had removed the sausage rolls from the bin, plated and heated them, and went on to serve them. One element of the reasonable grounds for her belief was that she carefully considered evidence about Mr Duffy’s mental health and its potential impact on how he behaved on the day, and decided that it did not cause or contribute to that behaviour. The investigation – which had uncovered CCTV evidence of Mr Duffy laughing together with a colleague in the galley at the relevant time – was considered sufficient. As far as procedural fairness was concerned, Mr Duffy’s complaint of being “ambushed” via the first investigation meeting was rejected. It was acknowledged that it was common practice not to give notice of investigation meetings.
In concluding that dismissal fell within the range of reasonable responses open to a reasonable employer, the tribunal noted that LNER’s concerns about cross-contamination and reputational damage were genuine and serious.
The tribunal went on to review the disability discrimination claim. Were Mr Duffy’s actions something that arose in consequence of his anxiety and depression? A number of matters from the immediate lead up to the incident were persuasive. However, there had been no prior behaviour of that kind. Indeed the tribunal decided that the incident involved a series of deliberate actions, from receiving the order to arranging service of the sausage rolls. Such actions did not arise in consequence of disability.
What does this case tell us? Above all, leaving aside the humorous elements, we may note that the employer meticulously considered whether the employee’s undisputed mental disability might have explained why he acted as he did in the first place, and whether it might displace dismissal from the range of reasonable responses. In reaching the contrary view, and having this upheld by the tribunal, it showed us all how wise it may be to investigate and evaluate thoroughly, and to avoid simply batting a purported explanation aside because of its far fetched nature.
Do you have a difficult disciplinary problem on your hands? Unsure if dismissal would be upheld? An outside opinion may help. Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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