Partner Article

Jumping Glasses

One of the things that always amazes The Tipster at the breakfast table is the ability for a half full glass of either orange juice (freshly squeezed of course), water or milk to levitate from the table, do a triple salko, two double twists and a magic spin around (by itself) and then proceed to cover half the kitchen floor. Now The Tipster does not like to allocate blame in the kitchen but the same cannot be said for the junior tipsters. Tipster 1 will point to the fact that Tipster 2 must have secretly looked at the said glass of liquid and made it levitate or, alternatively, Tipster 2 indicates that Tipster 1 must have magically cast a spell on the glass which made it perform the gymnastic feat. In other words they try and blame it on each other and it is never their own fault.

Now there has been an interesting case regarding a claim brought under the Equality Act 2010 and an individual claiming that they had been discriminated against for an issue arising from their disability. In the case of McGraw v London Ambulance Service NHS Trust, Mr McGraw was employed by London Ambulance Service NHS Trust as a Paramedic. Mr McGraw (who had a poor attendance record) was signed off sick with depression and anxiety. When he was still on sick leave he visited an ambulance station very early in the morning. His behaviour was erratic and two colleagues reported that they had seen him carrying a canister of Entonox (an anaesthetic gas) and believed that it was in his car. Furthermore, he was acting in a very irrational state. It was not possible to track the full movement of Entonox cylinders as duty crews were allowed to go into any station to exchange empty cylinders for full ones but after a disciplinary investigation it was found that he had abused Entonox at the station contrary to the policy of the employer (clearly) and he had driven away from the station when challenged. He was dismissed for gross misconduct.

He went on to try and claim that his actions arose or were in a consequence of his disability, namely depression. The Tribunal found no evidence of a link between the depression and attempted theft nor a link between the affects of any medication that Mr McGraw was taking and his dismissal.

Now, you are probably sitting there thinking well that is fairly obvious. However, it is often very difficult in practice where employers are faced with a challenge by an employee that the reason for either their misconduct or poor performance arises from their disability. Of course, we all like to give people the benefit of the doubt but there are situations where unfortunately people can still try and mislead employers. The aim, of course, is to separate the wheat from the chaff.

In so doing it is best to:-

• Have a private but focussed conversation with the employee to ascertain the nature and extent of their disability.
• A GP’s note may suffice in certain circumstances but certainly with more complex conditions it is wise to get either an occupational health/company doctor/external independent medical expert’s report to ascertain the full nature and extent of the disability.
• This should then be discussed with the employee.
• If it is the case that there is a link between poor performance/the act of misconduct and the disability then consideration should be given regarding sanctions/performance review indicators which are more suited to the individual at the particular stage of their disability. This should be fully documented and again discussed with the employee.
• However, if the employer has any doubts regarding any linkage then they are at that discretion to go through the disciplinary procedure (whilst also, of course, considering any reasonable adjustments to the disciplinary procedures they go through).

These are difficult situations but clearly that glass of juice/milk/water could not possibly have done a triple salko by itself, could it?

This was posted in Bdaily's Members' News section by David Gibson .