The facts of Crew & Mason v Three Milestone Education from Exeter Employment Tribunal are quite surprising given they involve allegations of two teaching assistants discussing both the use of cocaine whilst on school premises and having cocaine delivered to the school car park. Colleagues overhearing these conversations understandably escalated the issue to management and disciplinary proceedings were instigated.
What followed thereafter was where things went wrong for the Respondent, Three Milestone Education Limited as it failed to engage with a fair and robust disciplinary process and opened itself up to both claims for unfair dismissal and disability discrimination. One of the assistants had documented anxiety and depression and qualified as a disabled person for the purposes of section 6 of the Equality Act 2010.
In respect of the disciplinary process, there was an intermingling of individuals appointed to investigate the allegations which undermined its objectivity and fairness. Procedurally therefore the dismissals were unfair and not executed in accordance with the Acas Code of Practice om disciplinary & grievance procedures. Understandably though, any compensation that would have been awarded to either Claimant could be reduced by up to 100% on the basis that they contributed to their dismissals and that even if a fair process had been followed, the outcome would have been the same in any event.
More interestingly in this case the Claimant who suffered from anxiety and depression had attended her disciplinary hearing with her mother as her companion, by way of support. At the outset of the meeting the mother was asked to leave and was prevented from attending. Being an individual that suffers from anxiety and depression this caused harm to the individual and exacerbated her anxiety symptoms.
In respect of this response by the Respondent, the Claimant claimed harassment related to her disability which was upheld by the Tribunal on the basis that she was ‘more than minimally’ disadvantaged by the decision made not to let her mother attend. It was held that this was an ‘easy adjustment to make’ and the refusal to allow the Claimant to have her mother there had the effect of ‘creating an intimidating environment.’ This accords with the test in section 26 of the Equality Act 2010.
So the takeaways from this case are the importance of a fair, impartial and objective disciplinary process and the implementation of reasonable adjustments for disabled employees. Both of these points could have been easily discharged from the outset of the situation and would have avoided the need for claims to have been issued.
If you have a disciplinary procedure (which you should have) then follow it. Simple. If you employ people with disabilities, support them, accommodate them and make reasonable adjustments where both possible and practicable. Simple. That ought to keep you out of the Employment Tribunal.
This blog was written by Elizabeth McGlone, Partner at didlaw
