The Claimant worked as a warehouse supervisor for Vodafone. There was an argument between him and another employee who complained that the Claimant had been offensive, threatening and intimidating and that he had sworn at him in the course of the argument. The Claimant denied that he had behaved in this way. Vodafone management investigated the matter and decided that he had behaved as alleged, that he was guilty of gross misconduct and he was therefore dismissed summarily. The Claimant appealed to the next level of management and he said for the first time in the course of the proceedings that he had been suffering with severe depression since April 2017, that he was on strong doses of sertraline to help manage the condition, that some of the side effects of the depression were anger, frustration, irritability and anxiety and that the medication also has similar side effects. According to HR, the Claimant had an off the record conversation with them and apparently said, “if I had known it would have come to this I would have hit him”. The Claimant denied saying this. The ET found that the initial decision to dismiss had been fair but that the way the off the record conversation was dealt with rendered the appeal process unfair. Having decided that, the ET went on to decide that the additional piece of evidence (the off the record conversation) would have made no difference to the outcome, so that applying Polkey v AE Dayton Services Ltd [1987] IRLR 503 there would be no compensation in any event. Furthermore, they found that the Claimant’s “conduct was the cause of his downfall” and that accordingly any compensation for unfair dismissal should in any event be reduced to zero. The Claimant appealed.

The EAT allowed the appeal. The appeal process should have gone further into the Claimant’s mental health and medication and their possible impact on his behaviour and should have considered whether it amounted to a mitigating factor. It was plain that the ET did not consider this point in the context of the adequacy of the investigation: the only point they considered was whether HR should have taken into account the off the record conversation without the Claimant having an opportunity to deal with it.