Wheeley v University Hospitals Birmingham NHS Trust UKEAT/0259/18/DA

Appeal against the ET’s decision that the Claimant had contributed to her unfair dismissal. Appeal allowed.

The Claimant, who had been employed by the Respondent for nearly 20 years, was unhappy when she was notified of a proposed restructure. She responded inappropriately to the Respondent and to colleagues, and an investigation concluded that she was guilty of gross misconduct; however, it transpired during the investigation that the Claimant was suffering from bipolar disorder. On the Claimant's claims before the ET of unfair dismissal and disability discrimination, the ET found that the Claimant was unfairly dismissed, her dismissal amounted to disability discrimination, and she had contributed 25% to her dismissal. The Claimant appealed on grounds including that (1) she was not given a proper opportunity to comment on the issue of contributory conduct, and (2) the ET erred in law in finding that she was guilty of contributory conduct on the basis that she would not have responded inappropriately, even if she had not suffered from bipolar disorder.

The EAT held that the ET had erred in law in failing to identify the individual aspects of conduct said to have contributed to the dismissal, and thereafter objectively to assess blameworthiness as required by Steen v ASP Packaging Ltd. Accordingly, the matter would be remitted to the same ET.


Published: 07/01/2020 15:41

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