Welcome to the first in our Managing Tricky Dismissals series: five short blogs where we look at complex dismissal issues and how to approach them.

As employment tribunal claims continue to rise, now more than ever employers must have heightened sensitivity and a firm grasp in fairly and reasonably managing dismissals. When complex dismissal issues do arise, we need to make sure that we follow the correct process and put our organisation in the best possible position to defend a claim, if the dreaded ET1 form does hit the desk.

Here’s ‘sticky’ scenario number one:

“An employee has been caught stealing from the company. They claim that they are suffering from a medical condition that impacts on their judgement and they struggle to ascertain right from wrong. Can I fairly dismiss them?”

In any situation where an employee gives an explanation for their wrongdoing, its essential to provide due consideration to what they have said. Therefore, even if you think it is implausible don’t reject it out of hand; act upon it by engaging with your Occupational Health (OH) team for advice. OH will be able to tell you:

• Whether they are suffering from the condition alleged
• How the condition is likely to manifest itself
• Whether the condition impacts upon the employee’s behaviour in the way they claim.

Once you have OH’s advice and all the facts, you’ll be well equipped to make your decision and you’ll be in one of two camps:

1. OH’s advice disagrees with the employee’s explanation

If OH disagrees, and the employee is able to exercise reasonable judgement and know right from wrong despite whether they have the condition or not: it’s a conduct issue, best dealt with through your disciplinary process.

2. OH agrees

If OH’s response confirms that the employee’s explanation is plausible and their condition could have impacted upon their behaviour, then manage this using your medical capability process. The next step is to consider whether the condition can be managed within the workplace, and to do so – taking account of any reasonable adjustments you can make to ensure that problems don’t arise again.

Here’s four more sticky situations and how to handle them.

The content provided in this blog is for illustration purposes only and does not of itself constitute legal advice. It is your responsibility to ensure that these blogs are used in the correct context. Where tailored legal advice or further guidance is required it should be sought from a member of the Vista team.