A senior manager at a hospital who was diagnosed with bipolar disorder after being summarily dismissed for sending offensive emails to her colleagues and visiting the house of her boss after working hours was unfairly dismissed, a Birmingham tribunal has found.
Mrs S Wheeley lodged a claim for unfair dismissal and disability discrimination after she was dismissed from her job at University Hospitals Birmingham NHS Foundation Trust for sending a series of inappropriate emails her union representative described as “the shortest [professional] suicide note in history”.
Wheeley was employed by the trust from October 1996, and was most recently head of informatics. She had suffered from recurring periods of depression as a teenager, for which she had been treated with an antidepressant medication.
In 2006, she had told her GP she was worried she had bipolar disorder, but this was not diagnosed at this time.
A medical report submitted to the disciplinary hearing held by the trust concluded that Wheeley suffered from bipolar disorder, and had been in a state of hypomania at the time of sending the emails.
Her employer’s refusal to accept this, and to find no alternative to summary dismissal, amounted to unfair dismissal and disability discrimination under section 15 of the Equality Act 2010, the tribunal found.
As part of her role, Wheeley reported to the director of informatics, Daniel Ray, with whom she was in a romantic relationship. Ray reported to the organisation’s medical director, Dr Rosser.
Until May 2015, Wheeley had a clean disciplinary record with her employer, but her colleagues reported that her behaviour, such as banging tables and walking out of meetings, could be difficult and inappropriate at times.
In May 2015, Rosser proposed a restructure that involved splitting the informatics department, and commenced discussions with the senior team, including Wheeley, who in an email set out her hopes for promotion, and said she would be “deliberately challenging”.
Evidence offered to the tribunal by Wheeley’s medical experts later flagged this email as evidence that she was entering a hypomanic phase, as the self-confidence and tone of the missive was said to be out of character. The tribunal accepted that “this did illustrate an early indication of possible mood disturbance”.
When the restructure was finalised in July 2015, Wheeley was unhappy that she had not been promoted, and that she would be reporting to a manager other than Ray.
She emailed Rosser on 20 July 2015 to say: “I will not be reporting to Mark as he does not have the skills…” She sent a second email that evening, which she later acknowledged was “wholly inappropriate”, and in a further email threatened to email the informatics team, “informing them that the announced change would not be happening and why”, unless Rosser agreed to meet with her.
Wheeley was given an express management instruction not to email her colleagues, but despite this sent a group communication that included the executive director of the trust saying she was “considering her position” in response to the reshuffle announcement.
The series of emails resulted in Wheeley’s suspension for misdemeanours including “allegedly failing to follow a management instruction regarding not sending an email and communicating and acting inappropriately as a senior manager to other managers and colleagues”. A further allegation was later added, after she went to Rosser’s house on the evening of 27 July 2015 to attempt to discuss the issues.
Wheeley was interviewed twice under investigation during August 2015, where she sought to justify her actions, while acknowledging that she should not have attended Rosser’s house.
She issued a grievance against her employer in October 2015, although she was told by her union representative that there was no defence to the allegations unless she was ill, describing her emails as “the shortest suicide note in history”.
Wheeley sought to progress her grievance, and in December 2015 again reported her worries to her GP regarding having bipolar disorder. She was referred to an independent psychiatrist, Professor Oyebode.
Her disciplinary hearing was scheduled for 25 January 2016. On 3 February, Oyebode reported to the disciplinary panel with a clear view that Wheeley was suffering from bipolar disorder, and that this had “significant influence” over her actions – stating that, during manic phases, “people can exhibit behaviours that are out of character and that demonstrate irritability, hostility and recklessness, and may be prone to poor judgements”.
He added that Wheeley recognised sending the “threatening and insubordinate emails” was wrong, and regretted her behaviour, which she considered out of character.
However, the disciplinary panel failed to seek additional expertise from Oyebode, and decided they were “unaware of any suitable alternative roles within the trust” for Wheeley.
The trust dismissed her summarily for gross misconduct on 11 March 2016, over two allegations of failing to follow reasonable management instructions in relation to the sent emails and the visit to Rosser’s home. She claimed unfair dismissal and disability discrimination on 3 April 2017.
Employment judge Broughton found that Wheeley had contributed to her dismissal with her “inappropriate and unprofessional” behaviour, stating: “This was a senior manager who expressly breached two clear and direct management instructions. She also, effectively, made threats, refused to be managed and was attempting to stir up dissent.”
Although he added that it was likely she would have responded negatively to the departmental reshuffle in July 2015 even if she had not been suffering from bipolar disorder, he ruled that “no reasonable employer” would have rejected the medical assessment that Wheeley’s “actions were compromised by severe mental illness”.
He said the appropriate response to the diagnosis of bipolar disorder “was to seek clarity from the expert”, and that “to simply reject [that] the claimant’s actions were compromised by severe mental illness was unreasonable”. The dismissal was therefore unfair.
The judge further rejected the trust’s argument that “there was no reasonable alternative but to dismiss summarily”, as all the evidence offered by Oyebode indicated that Wheeley’s bipolar disorder was “eminently treatable”. Dismissing Wheeley was therefore an act of discrimination under section 15 of the Equality Act.
The parties have been issued with 28 days to come to a resolution before steps are taken towards a remedy hearing.