A (mental) health warning for employers

In this decision, the Employment Appeal Tribunal (EAT) has considered whether the claimant’s conduct, which arose from her disability, had resulted in discrimination arising from a disability by the employer. 

Bodis v Lindfield Christian Care Home [2024] EAT 65  

Facts of the case 

Ms Bodis was employed by the respondent as an Activities Coordinator at a care home until her summary dismissal for gross misconduct in March 2019. Ms Bodis was disabled for the purposes of the Equality Act 2010, suffering from anxiety and depression.   

 From October 2018, a number of unusual incidents started to occur at the respondent’s workplace. So unusual were these incidents, that from November 2018 the respondent started to keep a record of them. Examples of the incidents included paper towels being stuck down staff toilets, CQC reports being soaked in water and photos of the respondent’s management staff being defaced.  

The respondent commenced an investigation which included comparing the dates of the incidents and the staff log to identify which members of staff were present and comparing staff members’ handwriting. The respondent established that Ms Bodis was the only person on duty when all of the incidents occurred. 

Ms Bodis was invited to an investigatory meeting, during which her answers to the respondent’s questions were short and evasive, which contributed, in part, to the respondent’s decision to proceed with a disciplinary hearing. The investigating officer was not aware that Ms Bodis was disabled although she had previously had periods of sickness absence due to anxiety and depression. Prior to the disciplinary hearing, the claimant submitted a fit note to the rRespondent confirming that she was unfit for work due to a “stress related problem”.  

The disciplinary hearing was adjourned, and Ms Bodis was advised in writing that the rRespondent would consider a further adjournment if she provided a letter from a medical practitioner stating that she was unfit to attend and indicating when she would be. Ms Bodis did not ask for the disciplinary hearing to be adjourned and at the start of the hearing itself, confirmed that she was fit for it to continue.   

During the disciplinary hearing, Ms Bodis did not offer an alternative explanation for the strange events and denied that she was the culprit. However, having considered the evidence, the respondent considered that Ms Bodis’ behaviour was inappropriate, such that the employment relationship had totally broken down. Ms Bodis was summarily dismissed, and she did not appeal against the respondent’s decision.  

Ms Bodis brought several claims against the respondent, including claims for unfair dismissal and discrimination arising from her disability, both of which were dismissed by the employment tribunal. It upheld a claim for failure to make reasonable adjustments, concluding that Ms Bodis should have been given advance notice of what was to be discussed at the investigation meeting, and should have been given the opportunity to be represented. 

The employment tribunal dismissed the complaints that the respondent’s decisions to refer her to a disciplinary hearing and to dismiss her amounted to unfavourable treatment because of something arising in consequence of her disability. The tribunal accepted that the manner in which Ms Bodis answered questions in the investigation meeting was something that arose in consequence of her disability, it concluded that it was “trivial” and not significant in the respondent’s decision to invite her to a disciplinary hearing, or to dismiss her. The employment tribunal further held that the referral to a disciplinary hearing and the claimant’s dismissal were proportionate means of achieving the legitimate aim of upholding disciplinary standards in circumstances in which there had been a total break down in trust and confidence. Ms Bodis appealed to the EAT. 

EAT decision 

The EAT disagreed with the employment tribunal’s approach to “causative triviality” and held that it erred in law in concluding that the respondent’s treatment was not because of something arising in consequence of Ms Bodis’ disability. Despite her behaviour being a minor cause, it was, in any event, an “effective cause”, which had contributed towards the respondent’s treatment of her. The EAT did, however, uphold the tribunal’s rejection of the claim for discrimination arising from disability, as the respondent’s treatment was found to be a proportionate means of achieving a legitimate aim. The claimant’s appeal therefore failed. 

The Birketts view 

The EAT’s decision serves as a reminder of the rigorous scrutiny applied when dealing with disability discrimination claims, specifically around the issue of an employer’s treatment arising in consequence of an employee’s disability and its justification for such treatment. Employers who are on notice of an employee’s health condition, particularly where a working relationship becomes contentious, should consider whether such condition could amount to a disability under the Equality Act 2010. If in any doubt, it’s usually best to proceed on the assumption that the employee is disabled within the meaning of the Act. 

This case underscores the importance of striking a balance between accommodating employees’ disabilities and achieving legitimate business aims. Employers are urged to carefully consider and record the rationale for disciplinary treatment towards potentially disabled employees and to ensure that they could, if required to do so, justify their actions as both proportionate and legitimate to an employment tribunal. In this case, the EAT was satisfied on the facts that the employer could justify the decision to take disciplinary action and dismiss the claimant. 

In relation to employees’ mental health, of which there has been an increased awareness in recent years, employers are further encouraged to keep staff up to date with ED&I and mental health training and to be mindful that such conditions can present very differently from one individual to another.