Shoplifting health visitor's dismissal fair

Posted: 30th September 2014

EATA health visitor who lost her job after involuntarily embarking on a violent shop-lifting spree whilst in the grip of a psychiatric disturbance has failed to convince the Employment Appeal Tribunal (EAT) that her employers treated her unfairly.

The woman, who had a blameless 12-year work record, had endured a series of tragic events in her life - including her husband leaving her, a diagnosis of breast cancer and a friend’s death from the same disease. She was suffering from acute depression and bearing a double work load after a colleague went off sick.

After she broke her way out of a supermarket with goods she had not paid for, and drove away with a customer on her bonnet, she admitted theft, battery and dangerous driving. She was given a conditional discharge on the basis that her actions had been involuntary and entirely out of character.

As a consequence of her convictions, she was nevertheless summarily dismissed by her NHS trust employers. After she launched proceedings, an Employment Tribunal (ET) rejected her unfair dismissal claim on the basis that she had been convicted of serious criminal offences which were relevant to her employment. Her summary dismissal was within the range of reasonable responses open to the trust.

However, in circumstances where the trust accepted that she was disabled by reason of her mental incapacity, and had rejected her as a candidate when she applied for another post, the ET found that there had been a failure to make reasonable adjustments to cater for her condition.

In upholding the trust’s challenge to that decision, the EAT noted that the ET had made the relevant finding without identifying a single adjustment which would have had the practical effect of keeping the woman in work. The ET had misunderstood the scope of the duty owed by the trust and had erred in law.