In this week’s alert we review a case involving an employee who was dismissed after he ‘suspended’ himself whilst he investigated concerns into his own health and failed to provide sick notes when requested by management says Tom Scaife of Baines Wilson LLP. We consider whether the employer acted fairly in dismissing him.
Ian Drury v Ministry of Defence (MOD)
Drury was employed by the Defence Science and Technology Laboratory (DSTL) (an executive agency of the Ministry of Defence) most recently as a mechanical engineer. He was employed from 5 July 1982 until his dismissal for gross misconduct on 6 February 2020.
Drury was generally held in high regard by his colleagues and his line manager. He had been experiencing back pain which resulted in him being absent from work from 19 March 2019 to 1 April 2019 and again from 15 April 2019 to 4 June 2019.
On 16 April 2019, Drury’s line manager wrote to Occupational Health regarding Drury’s absences. The referral stated that Drury had not turned up for work on 16 April 2019, his line manger had spoken to him for about 20 minutes concerning his problems and became increasing concerned over some of the statements Drury was making. His line manager advised him to stay at home on sick leave. His line manger later spoke to other colleagues who confirmed that Drury had been acting out of character, becoming increasingly agitated and upset at work.
OH wrote to Drury’s line manager on 5 June 2019 and recommended a phased return to work and that he gradually resume manual tasks; however, on 10 June 2019, Drury informed his line manager that he was ‘placing himself on leave and would not attend work’. Later that day, Drury’s line manager raised concerns with HR in connection with his own and other colleagues’ concerns about Drury’s mental health.
On 27 June 2019, OH provided a report following a phone call with Drury which stated that Drury had suspended himself due to historical management/employee relationship problems not due to medical reasons.
On 23 July 2019, Drury sent an email to his line manager that he would be off sick with depression and would not be returning to work with his ongoing issues. Drury’s line manager asked him to provide a fit to work note from his GP but Drury did not provide this.
On 7 August 2019, Drury informed his line manager that there was nothing wrong with him and that he would not need to see his GP. Drury’s line manager then spoke with HR stating that while he had concerns about Drury’s mental health, effectively Drury was absent without leave or a sick note. Drury was sent several warnings and was invited to a meeting to discuss his absence before disciplinary action was considered. Drury initially agreed to attend but later changed his mind, stating he wouldn’t return to work until ‘it was safe to do so’.
On 18 October 2019, Drury was suspended pending formal disciplinary proceedings. He was invited to a disciplinary hearing to take place on 29 October 2019. On 23 October 2019, Drury provided a sick note which covered the period of 23 October to 6 November 2019 and noted his absences were due to stress at work. Drury later provided further sick notes which covered period up until 15 January 2020 noting stress and associated issues related to stress. The disciplinary hearing did not take place.
OH wrote to Drury’s line manager in October noting he was frightened about coming into the workplace and was unfit to work and unfit to attend a potentially stressful meeting. OH also referred to the reason for his absence in July being due to ‘strong personal concerns re historical work events and employment’.
Drury was invited to a disciplinary hearing on 31 January 2020 and was given the option to ‘present his case’ via a video which he accepted. He was accused of gross misconduct due to his unauthorised absences from work and ‘refusal to obey a reasonable management instruction’ in that he had failed previously to provide sick notes.
The hearing took place and Drury was dismissed without notice or payment in lieu of notice for gross misconduct for failing to follow instructions and being absent without leave or a reasonable explanation as to his absences. Drury submitted an appeal which was not upheld.
Drury brought a claim for unfair dismissal and wrongful dismissal.
Decision
The Tribunal held that Drury’s dismissal was not based on reasonable grounds. The allegations of misconduct were based on suggestions that Drury unjustifiably refused to attend work without any motivation or reasoning. Therefore, the MOD had unfairly dismissed Drury. The Tribunal felt that the MOD could have done more to avoid dismissal.
The Tribunal felt that the MOD did not consider Drury’s ‘sudden display of mental health issues’ before deciding to fire Drury for gross misconduct after 37 years of service. Had the MOD considered Drury’s ‘mental health issues properly… there is a substantial chance they would have kept him as an employee’.
While the Tribunal accepted that the MOD has a policy that required sick notes to be provided for extended period of illness, they stated that it cannot be a rigid rule which is always applied if the individuals is experiencing mental or physical issues which prevent them from providing a sick note.
The Tribunal felt that Drury appeared to have an ‘odd demeanor’ during the gross misconduct hearing. Drury’s line manager had suggested this may have been due to his mental health issues or the medication he was on.
The Tribunal found that the MOD was in breach of contract by failing to provide notice or payment in lieu following the dismissal, therefore the MOD had also wrongfully dismissed Drury.
Comment
Employees who are on long term sick and either unwilling or unable to engage with the employer’s processes can be one of the hardest scenarios to manage. Employers faced with such an employee need to provide every opportunity for the employee to engage and consider any particular circumstances which may be the cause of the employee’s actions before dismissing.
If, as in this case, there appears to be other reasons such as mental health which is the underlying cause of the conduct, employers need to explore that and of course heed any medical advice. Aside from potential discrimination issues, proceeding to dismissal without engaging properly with a potential medical cause for conduct will often result in the dismissal being unfair.
If you have any questions in relation to dismissals, disciplinaries, long term sick leave or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
