Removing the emotion

A recent case involving the insurance company Aviva illustrates well how our personal views about fairness and inclusivity are sometimes at odds with the legal standards.

At first sight, the outcome of this case appears harsh on the employer - it's the sort of case that sometimes attracts newspaper headlines. The employee had a paranoid schizophrenic illness and sexually assaulted two female employees at work during a time when he had stopped taking medication to treat his condition. Most employers would dismiss where sexual assault at work is proven - and provided they followed a fair process (around investigation; hearing; appeal) this would usually be a fair dismissal.

However, this case reminds us of how disability may make a difference. In particular, where medical opinion confirms that the behaviour arises from the employee's disability, the dismissal needs to be justified.

This is a harder test for the employer than standard fairness: it requires a "legitimate aim" and an "appropriate and necessary" way of achieving that aim. What does this mean in practice? The employer in this case was (understandably) concerned about standards of behaviour at work and the safety of its other employees: this was a legitimate aim behind the dismissal. But this had to be balanced against the discriminatory impact of dismissing the employee: what other options were open to the employer?

Here, the employee suggested working from home until his condition was stabilised by medication. The employer did not give this due consideration and the case will need a further hearing on this point. It may be that there was a risk of relapse even if the condition were stabilised: but this was not sufficiently explored with medical opinion to justify dismissal.

This case reflects conversations I have with clients about disability. People have personal views about what is "fair", "reasonable" or "appropriate" treatment. Difficulty can arise when the law sets a different more challenging standard. In the Aviva case, the behaviour of the employee was extreme but to treat him the same as a non-disabled employee who had sexually assaulted a colleague at work is to ignore the fact that his behaviour is disability related.

And equality for that disabled person is (sometimes) to treat him differently. There is no inconsistency in this because the disabled and non-disabled person are not in the same circumstances.

Put like this, it may seem obvious but in practice it can be challenging. The management consequences of not dismissing the employee in this case would likely have required very careful handling. For example, what would have been said to the two colleagues who had been assaulted? But this is not insurmountable and is part of a manager and HR's role.

Perhaps Aviva will ultimately be able to justify the dismissal - but this is not straightforward and requires a careful, dispassionate approach to get it right.