In the case of L V M (UKEAT/0382/13/DXA the Claimant was employed as a Crisis Loans Manager and was considered a “good employee”. She had worked for her employer since February 1998.
By 2009, a situation arose between the Claimant and an individual (“P”) which lead to claims and counterclaims of harassment outside work. The Claimant was arrested on a number of occasions and P began to make complaints to the Claimant’s employer. P made three complaints to the Claimant’s employer all of which were investigated and found to be unsubstantiated. The Claimant was not informed of the complaints or the outcome of the investigations.
In August 2010, the Claimant received an anonymous tip off that her employer had evidence that could clear her of criminal charges. The Claimant contacted her employer and was provided with some, but not all of the information it held. She asked for further information but her employer refused. In December 2010, the information was sent to her anonymously and the Claimant passed it to the police who concluded that the Claimant was not harassing P as had been alleged.
From September 2010, the Claimant felt increasingly angry and frustrated by her employer’s refusal to provide the information and this impacted on her health. She started to have time off work and was absent from 6 January 2010 until 12 April 2010 with post-operative complications following an operation on her jaw and a reactive depression caused, in part, by problems arising from P’s allegations. Things did not improve and, following her return to work, the Claimant was frequently absent with reactive depression. The Tribunal found this was caused exclusively by P’s allegations of harassment and that it was exacerbated by the employer’s actions. By January 2011, the Claimant had had 162 days absence in 2010 of which 50 days were continuous.
The employer implemented its absence management policy and invited the Claimant to a meeting on 15 December to consider whether or not to dismiss or demote her. The Claimant explained that her absence was related to problems with P and her employer’s decision to withhold information from her. She provided a 19 page statement and e-mail evidence to support her position. The decision maker decided to investigate further. He knew that the company had withheld information from the Claimant and that when it had been provided to the police the case against the Claimant had been dropped. He contacted the Royal Courts of Justice and, on being told that the proceedings were not being brought by P, concluded that the Claimant was lying without checking his findings with her. He determined that it was not necessary to read the Claimant’s statement or the evidence she presented and concluded that the Claimant’s conditions was caused by her lifestyle choices and was not the responsibility of the employer. She was, therefore, dismissed. The Claimant appealed unsuccessfully and the Tribunal later concluded that the appeal letter did not deal directly with the Claimant’s grounds of appeal.
The Tribunal concluded that the dismissal was unfair and the employer appealed. The Employment Appeal Tribunal (EAT) upheld the initial finding.
As with all reported cases, there are lessons to be learned for employers. This case does not mean that employees cannot be dismissed fairly if their employer has aggravated or contributed to their ill health. It does, however, mean that employers should think carefully about any alternatives to dismissal before terminating the contract of employment.
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Published on 13/10/2015