Gardener with anxiety and depression unfairly dismissed following drink-driving conviction

Tribunal rules employer failed to take claimant’s health into account when investigating his conduct

A gardener with a history of mental ill-health who was convicted of driving under the influence of alcohol was unfairly dismissed by his employer, a tribunal has ruled.

Fife Health Board sacked Mr Lorne Anderson for gross misconduct, citing a criminal conviction that impacted his ability to do his job. The organisation requires gardeners to have a full driving licence, but Anderson was banned from the road for two years following a drink-driving conviction.

However, the Edinburgh tribunal found his employer didn’t take into account his history of anxiety and depression during its disciplinary investigations, and as such did not act reasonably.

Another claim of disability discrimination was dismissed by the tribunal.

Anderson had worked as a gardener for Fife Health Board since 2001. The tribunal heard the job entailed long hours, with gardeners working six days a week. From 2009, the number of gardeners was reduced, which meant Anderson was on call for two weeks out of every three in winter months, during which time he had to be on standby 24 hours a day, seven days a week.

In 2010, Anderson was signed off work for three months with anxiety and depression, and again for four months in 2012. An occupational health professional noted that his increased workload could have impacted his condition. 

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He continued to manage his mental health with medication, and was not signed off work again until the events leading up to his dismissal.

In January 2018, on a night that he was on call but had not been called into work, Anderson was involved in a car accident and arrested for drink-driving. He pleaded guilty to driving under the influence the next day. After sentencing was initially deferred, his driving licence was subsequently revoked for two years. 

Following the incident, Fife Health Board launched an internal investigation into Anderson’s conduct. At an initial meeting, he admitted to the offence, but cited a fight with his girlfriend the evening preceding the incident. He added that his workload and his anxiety and depression also contributed to his actions. He was then signed off from work for mental health reasons. 

Fife Health Board produced a report considering Anderson’s position, and highlighting senior management’s initial conclusion that his actions amounted to gross misconduct. 

The report noted that work pressures could have been a factor in his behaviour, but no reference was made to his other defences, namely his mental health condition. 

A number of disciplinary hearing dates were set throughout spring and summer 2018, but Anderson was unable to attend these due to ill-health. On 19 June, a hearing was carried out in his absence, but was adjourned pending further information. During this time, Anderson raised a grievance, claiming he had been discriminated against on the grounds of disability. 

On 25 July, Anderson was informed in writing that his actions amounted to gross misconduct, and his employment was terminated. 

Due to Anderson not having taken any mental health-related absences since 2012 at the time of the incident, it was decided that his anxiety and depression were not factors in the events of January 2018.

While the tribunal noted that drink-driving was potentially reasonable grounds to dismiss an employee, it found that Fife Health Board acted unreasonably in not taking Anderson’s anxiety and depression into account. 

The dismissal was therefore unfair, the tribunal ruled, as a reasonable level of investigation had not been carried out at the time it was decided Anderson was guilty of gross misconduct. 

Fife Health Board was ordered to pay Anderson a basic pay award of over £1,500, and over £8,600 in compensation, leading to a full award of £10,208.56. This amount had been reduced to reflect the fact that Anderson’s actions could have been grounds for a fair dismissal had a proper investigation into his history of mental illness been carried out.

Paul Holcroft, associate director at Croner, said the case “offers a warning to employers that, despite what appears to be serious misconduct by an employee, they can still be caught out by failing to follow the correct procedure. 

“Even though the employee’s disability was not cause for discrimination by the employer, it played a part in the reasonableness of the dismissal,” he explained. 

“Failure to focus on whether an employee’s condition has contributed to their actions can be a real sticky point for employers in an unfair dismissal claim.”

NHS Fife director of workforce, Barbara Anne Nelson, said that the organisation was unable to comment on matters relating to individual members of staff, past or present. 

Anderson could not be reached for comment.