Ask the expert: Disciplinary action and illness disclosure

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An employer has started disciplinary proceedings against a disruptive employee. The employee has now disclosed a medical condition which could affect the proceedings. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.

The question:

I have started disciplinary proceedings against an employee, after it was disclosed they were pursuing personal commercial interests during work time and using company resources in doing so (there is evidence to prove this as well as witness testimonies).

In addition, this person has also been a disruptive member of the team over the last 18 months, with a constant negative attitude towards his work, colleagues and the company he works for. The overall effect is a very unhappy team based on this one person, who has received several informal verbal warnings from a previous line manager on both aspects (although nothing was documented).

Although we have not yet presented the disciplinary action to this person, they have subsequently disclosed they are suffering from Generalised Anxiety Disorder (GAD). How does this revelation affect the proposed disciplinary case? Without the doctor's advice, I'm guessing the GAD could be affecting their personality which, in turn, causes the disruption at work (quite aside from the fact they were pursuing their own personal interests).

Legal advice:

Esther Smith, partner, Thomas Eggar

I am not entirely sure at what stage you are at in regards to the disciplinary procedure - whether you have instigated the procedure but not yet held a meeting or issued a decision, or whether the employee does not yet know that disciplinary proceedings are to happen.

However, as the employee has disclosed this condition, I suggest that you ask the employee whether this condition impacts on the disciplinary issues in question. I have no medical knowledge of this condition, but whilst it may affect their mood and attitude at work, it should not be an excuse or reason for carrying out competitive activity in breach of the duty of fidelity.

Therefore, even if the employee does raise this condition as 'mitigation' during the disciplinary procedure, I do not think it gives us a massive problem.

It would be sensible to get an opinion on whether what the employee is telling you is correct before issuing a disciplinary sanction, and, in the circumstances, this could come from the employee's own GP. This may cause delay but would be a sensible step from a risk avoidance perspective.

There is also the possibility that this condition would provide the employee with protection under the DDA so we would need to take that into account, and consider, for example, whether a lower level disciplinary warning may, in this case, amount to a reasonable adjustment.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

You have several themes going on here and we need to see if we can tease out what matters and what doesn't. Pursuing personal commercial interests is not necessarily sufficient to constitute a disciplinary offence in itself, unless you have an express prohibition. It might if these interests interfere with your business (for example, the employee is concerned in a competing business).

However, using your company resources is a problem and may well give rise to a disciplinary warning or, in a serious case, dismissal (there may, for example, be a breach of trust and confidence in a serious case). You will need a proper investigation to establish the facts.

You also have team relationship issues. These are significant and must be properly investigated as a dysfunctional team can be highly destructive. If this employee is the cause or has significantly contributed to the breakdown of the team, then action can be taken.

I agree that the employee may say that the GAD affects his behaviour. All that means is that in deciding whether a) he is culpable and if so, b) the level of sanction, you should take the effect of the GAD into account. But to do so you will need medical help and a report from his GP will be required as a minimum. The employee can be asked to provide this should he wish to rely on the GAD as a defence/explanation.

Finally, you must consider if the GAD makes the employee disabled. This is complicated and if it does then you must also consider making reasonable adjustments and you should seek detailed professional advice about this.

Martin Brewer can be contacted at: [email protected]

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