Criminal
Conviction related to Disability: Unfair Dismissal
In Henman v Ministry of Defence, Mr
Henman was employed in a civilian capacity by the Ministry of Defence. He lived
in shared accommodation provided by the MOD and following being found with
video and still images of another employer taken covertly in the shower he
pleaded guilty to outraging public decency. He was sentenced to a three year
community order. Sackable offence?
The Employment Tribunal found that the
MOD had unfairly dismissed Mr Henman. It was accepted by the Court that he
suffered from Asperger’s syndrome and a number of other mental conditions. He
had been dismissed for gross misconduct, which according to the Employment
Tribunal was outside of the range of reasonable responses. It also found that the dismissal was related
to his disability and therefore they had breached the Equality Act.
The Employment Appeal Tribunal (EAT)
disagreed. They stated the Employment Tribunal had substituted its own view on reasonableness
instead of assessing what a reasonable employer would have decided. In addition
they stated they had made an error is assessing proportionality under the
Equality Act, focussing entirely on what the Crown Court had said when they had
sentenced Mr Henman. The case was sent back to be decided by a different
Employment Tribunal.
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