Asda caught with their trousers down

Mr Raymond worked for Asda as a lorry driver for 15 years. He was also disabled under the Equality Act, because he had type 2 diabetes. Asda was aware of this. Whilst in one of Asda’s delivery yards, Mr Raymond was caught short. He had an uncontrollable need to urinate, and so he went to the corner of the yard to relieve himself. This was all picked up by Asda’s CCTV. Once aware, Asda undertook an investigation into the incident. Mr Raymond admitted that he had urinated and apologised for the incident. Asda decided that this admission of guilt was enough and summarily dismissed Mr Raymond for gross misconduct. He appealed his dismissal, citing his medical condition which he had evidenced, but the dismissal was upheld. He subsequently brought a claim.

At the ET, it was noted that no further investigation had taken place after Mr Raymond’s admission of guilt.  They had not considered the reason why he had needed to relieve himself so urgently. The urgent need to urinate is a symptom of type 2 diabetes and so there was a perfectly reasonable explanation for Mr Raymond’s behaviour which was not considered by Asda. As such, the ET found that the Claimant had been unfairly dismissed and his dismissal had arisen from something related to his disability.

Asda appealed to the EAT. At the appeal, they stated that the CCTV evidence showed that Mr Raymond had urinated on pallets of trays used for food. As a result, they cited that this was in breach of health and safety regulations. They did not specify which regulation was breached.

The EAT dismissed the appeal. The CCTV did not conclusively show that the Claimant had urinated on the pallets and, in any event, the reason for dismissal was the act of urinating and not the location of his urination. Regardless, the EAT focused on the fact that Asda could not objectively justify the reason to dismiss. They had not thoroughly investigated the incident and it was not proportionate for them to dismiss Mr Raymond. The EAT decided that Asda should reinstate Mr Raymond to his previous role and also awarded him compensation.

Whilst the facts of this case are, fortunately, highly unusual, the case does reiterate an important point. In the event of misconduct, especially if it will have serious consequences for the employee, the matter should be investigated thoroughly. Whilst an employer only needs to be reasonable, thought must be given to the reason(s) for an employee’s actions. In this case, Asda were aware, or should have been aware, of the Claimant’s disability, which provided an explanation for his actions. In many ways, this case echoes the sentiments from Grosset v City of York Council, an assessment of which can be found HERE.

If you are going to dismiss an employee, strongly consider whether they have protected characteristics. If the reason for dismissing the employee may be linked to their protected characteristics, the dismissal risks being unfair and discriminatory. This case is a stark warning at how the ET and EAT can operate – a reasonable investigation is paramount.

In summary, it is important to consider whether a person’s conduct might have been caused by or related to their disability. This will give you the opportunity to make a reasoned decision in light of the relevant facts.

The link to the case can be found HERE.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.