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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I am facing a disciplinary hearing for making a discriminatory

Resolved Question:

I am facing a disciplinary hearing for making a discriminatory remark which was overheard. This is totally out of character for me I have a clean record of 38 year's experience. I am and have been suffering from recurrent depressive disorder for the last 20 odd years. And my medication was not working over the period of the remark I made. My psychiatrist has stated that one of the symptoms of my illness is irrational and uncharacterisic behaviour. Where do I stand legally ?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Is the 38 years' service with this employer?

Customer: No in education.....I have been with this school over 7 years
Ben Jones :

have you been told what the potential outcome of the disciplinary could be?

Customer: Could be a formal warning or dismissal
Customer: ..?
Ben Jones :

Have they investigated the potential reasons for your behaviour, for example have they asked you about your condition, etc?

Customer: They didn't ask me but I mentioned it in initial investigations......I have had more information subsequently about my illness
Ben Jones :

ok let me get my response ready please

Customer: Where will the response be? Here or by e-mail?
Ben Jones :

here

Ben Jones :

Whilst the presence of a medical condition will not provide a bulletproof defence to an act of alleged misconduct, it is something that must be taken into consideration by the employer, otherwise they could be guilty of unfair dismissal (if that results in dismissal) and potential disability discrimination.


 


There is one example in the courts, in the case of The City of Edinburgh Council v Dickson, where a diabetic employee was dismissed because he had a hypoglycaemic episode, which resulted in an act of misconduct.


 


This case went to the Employment Appeals Tribunal, which decided that he was unfairly dismissed, but rejected the claim that he was subject to disability discrimination. The employer failed to conduct a fair dismissal procedure because they had failed to carry out an adequate investigation, choosing to take into account an uninformed opinion from a third party, instead of properly investigating the possible consequences of his condition with qualified doctors. They said that a fair investigation would probably have shown that he was not responsible for his actions.


 


So whilst you can certainly defend the allegations, provide any relevant evidence about your medical condition, how it may have affected your actions and so on, your legal rights will become more obvious once the employer has made a decision following the disciplinary. As shown in the example above, it is potentially possible for a dismissal to be fair even if a medical condition was responsible for the alleged misconduct, as long as the employer has conducted a proper investigation, taken into consideration the relevant factors and shown that their decision was a reasonable one to take. So at this stage it would not be possible to say whether you can challenge any decision they have taken, not until this has happened and we know how they reached it.

Customer: Thank you that was helpful. Can they hold a disciplinary meeting even if I am too ill to attend?
Ben Jones :

if you are off sick at the time of the scheduled hearing then you can ask for a postponement and provide any necessary evidence, such as a doctor's note. The employer should rearrange it and they should only hold it in your absence if there are evident reasons to believe you are not genuine or have repeatedly failed to attend without good cause

Customer: Thank you best advice I've had so far
Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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