The People Bulletin

Even the most unlikely of explanations for what, on the face of it, appears to be utterly unacceptable behaviour cannot be dismissed out of hand, as the City of Edinburgh Council found out to its cost in The City of Edinburgh Council v Dickson^1.

Alistair Dickson was employed by the council as a community learning and development worker and had access to a computer suite intended for community use.  For some 30 years he had been suffering from type 1 diabetes and in recent years the condition had been badly controlled and was made worse by the mis-prescription of insulin of the wrong strength. In 2007 three of his toes had to be amputated as a result of neuropathy and his condition categorised him as disabled within the meaning of the Disability Discrimination Act 1995.

On 6 June 2007, Mr Dickson’s manager received a complaint from the organiser of a youth club whose members had been visitng the computer suite afternoon, that he had had been observed by both children and the adults accompanying them viewing seriously pornagraphic images on one of the computers.  He was suspended two days later and the disciplinary hearing was held on 28 February 2008 at which he claimed he had no recollection of viewing pornographic images or visiting an inappropriate website containing sexual imagery while at work.

The People Bulletin is grateful to Bob Fahy², a solicitor at Matthew Arnold & Baldwin LLP for his helpful summary of this unusual case.

‘His defence to the allegation was that he had no memory of any such incident and could only assume that his conduct and the lack of memory of it were both caused by a hypoglycaemic episode relating to his type-1 diabetic condition. Both the manager making the initial decision and the councillor who dealt with the appeal did not believe Mr Dickson’s explanation and he was dismissed for gross misconduct.

Mr Dickson issued claims for unfair dismissal and disability discrimination. Both claims were successful at the tribunal. When the council appealed, the EAT overturned the disability discrimination decision, holding that the fact that Mr Dickson was a diabetic did not influence the way that the council reached its decision to dismiss at all.

However, the unfair dismissal finding was upheld. The main reason for this is that the council “failed to engage” in the explanation offered by Mr Dickson at all. In other words, the council decided that Mr Dickson was lying without taking proper steps to understand the evidence that was available about his medical condition. Both the tribunal and the EAT were less than impressed that the the manager conducting the disciplinary meeting seemed to have relied on (incorrect) advice provided by the council’s HR adviser, second-hand from the adviser’s wife (who happened to be a pharmacist) that a hypoglycaemic episode could not result in out of character behaviour or memory loss.

The striking thing for me about this case is that with a little more care the employer could have reached exactly the same conclusion and not been liable for unfair dismissal. The reason why is explained in the EAT’s judgment, “[It] was in principle plainly open to [the council] to disbelieve [Mr Dickson's] explanation… Thus, if it were shown that [the council] had engaged with the Claimant’s defence but had reached a considered view that it should be rejected, it is hard to see how that conclusion could be said not to have been open to it… [the council] had simply not taken the defence seriously”.

The EAT agreed with the tribunal that Mr Dickson had to be reinstated. 

[1] www.bailii.org/uk/cases/UKEAT/2009/0038_09_0212.html

[2] Bob Fahy’s blog on a range of employment law issues can be viewed here