Following our recent blog “New ACAS Mental Health Guide’ written on the 25th October 2017, here is a case in relation to a depressed software engineer working in Cambridgeshire since 2011 who has won his tribunal for being unfairly dismissed by his company who behaved in a ‘totally unreasonable manner”. It was found that he had been unfairly dismissed whilst undertaking extended sickness absence because of depression.
Andy Mitchell had worked as a software engineer for Cambridgeshire-based Amiho Technology since April 2011, and the tribunal heard he had a fractious relationship with managers who were often “bullying” and “intimidating” at work. Following a series of workplace altercations with one particular manager, a disciplinary process was opened against Mitchell for gross misconduct in October 2015.
Matthew Pinto-Chilcott from Consensus HR comments “This unfortunately is a case where a workers ill health is not dealt with correctly and demonstrates where the company did not take any of the employees needs into consideration when dealing with it. We all know that businesses, especially those with small teams have deadlines to meet but by not managing sickness absence correctly can result in the employee on sick leave being made to feel worse. This employee was also covered under the Equality Act 2010 due to his absence being due to depression and him being treated ‘Less Favourably’. Employers when dealing with such issues need to identify if the behaviour of the employee could be down to a disability and then act accordingly.”
Emily Burt from People Management – 6th November 2017 comments further. Emails exchanged between Mitchell’s managers referred to the disciplinary process as part of his exit from the company, and Mitchell testified that he felt he faced the choice of taking a compromise settlement or “being fired”.
After the gross misconduct allegations were filed, Mitchell was signed off on sick leave for depression for two weeks. He was subsequently signed off for a second time, covering three weeks leading up to 24 November 2015. On being signed off a third time, Mitchell’s manager, Mr Blumstein, wrote to him saying the company would proceed with its sickness absence procedure and would obtain a medical report from his GP. But the tribunal heard that this tied the sickness absence to the on-going disciplinary process.
The court cited an email from Blumstein in which he told Mitchell: “[The medical report] is in order to better understand an employee’s medical condition and to try and determine when the employee would be in a position to return to work, or in your case be fit to attend the grievance and disciplinary meetings. We must bear in mind that when your sickness absence comes to an end you will continue to be suspended pending an invitation to a disciplinary meeting.”
Throughout Mitchell’s continued absence, the company continued to remind him that disciplinary matters needed to be dealt with. He was given time limits described as ‘totally unreasonable’ to respond to correspondence, often amounting to as little as two working days. The tribunal also found no consideration appeared to have been given to assisting Mitchell’s return to work, or waiting until he was fit and well before reconsidering the disciplinary issues.
Mitchell attempted to raise questions around the holiday allowance he was accruing during his sick leave, and requested to take his annual leave in a block during his absence, but these requests were unanswered and the tribunal heard his mental health continued to deteriorate during the process.
A final dismissal meeting was held on the morning of 18 July 2016, despite Mitchell telling his employer he had difficulty functioning in the mornings because of the sedatives he was taking under prescription, and that he would need to leave to attend a CBT appointment. In a transcript of the meeting, Blumstein opened by saying proceedings should not take long, which the tribunal took to mean he had already decided that a dismissal would be the end result.
The meeting concluded with Blumstein saying he would consider the options and then write to Mitchell, but warning that he had been advised one of the options was Mitchell’s employment would be terminated because of ill-health on a capability basis. The dismissal was subsequently confirmed by letter.
“The claimant’s dismissal was clearly unfavourable treatment because of something arising from his disability, as he was dismissed because of his sickness absence, which was entirely down to his disability, and because he could not say when he would return,” the tribunal concluded. “The respondent knew or reasonably ought to have known that he was disabled by the time of the dismissal meeting. The dismissal clearly amounted to unfavourable treatment.”
The tribunal also found that the firm failed to make reasonable adjustments for Mitchell’s mental health, did not attempt to mediate and did not consider suspending the disciplinary case until he was fit to engage with it.
Mitchell was awarded £1,000 in income tax and national insurance in respect of the unfulfilled holiday pay claim made to the company during the disciplinary process. A remedy hearing will be held in due course regarding the unfair dismissal finding.