Playing it safe and considering mitigation to avoid a disciplinary hazard

Patrick was caught bang to rights when he committed a serious health and safety breach at work.

The building worker was filmed cutting wood without wearing safety glasses. The evidence was irrefutable.

A year earlier a colleague lost a finger because he was not wearing safety gloves. Management reinforced the need to wear safety equipment at all times and warned a failure to do so would have serious consequences.

Patrick was suspended from work. He was told by his boss he was going to be dismissed because he had 20 years’ service and should have known better.

A colleague pointed out to Patrick that other workers had committed similar breaches and not been dismissed.

Patrick contacted the Castle Associates Employee Support Centre for help. When he  spoke to our representative he said he was desperate to keep his job.

Our representatives know that mitigating factors can mean that dismissal is not always within a range of reasonable responses in cases such as this.

Other sanctions such as a formal warning can be appropriate depending on the mitigation.

Patrick acknowledged that he had done wrong and said he would willingly accept a warning.

Our representative discussed the case and Patrick’s circumstances at length in order to understand any matters that may help his case.

Patrick explained that two years earlier his mother and teenage daughter died within the space of three weeks. He was later diagnosed with depression and prescribed medication, which he was still taking.

The company was aware Patrick had depression, as he had been forced to take time off sick on a couple of occasions as a result of it.

He had also struggled mentally in the months before the incident. A niggling work-related back injury prevented him from working out - exercise helped with his low mood - and with a recent announcement from the company that it was going to start redundancy consultation.

Patrick was extremely worried, stressed and anxious. He visited his GP a month before the incident, and it led to his medication being increased. He informed his employer because of the possible side effects.

Patrick said he continued to struggle but did not complain or make a fuss because he wrongly feared being seen as weak.

At the disciplinary hearing our representative said the Patrick accepted the allegation. The hearing was told there were mitigating factors that needed to be considered.

Our representative explained the detailed background to Patrick’s depression and that because he had suffered with it long-term it was likely to be considered a disability under the Equality Act 2010.

It was pointed out depression can affect how you feel physically, mentally and also how you behave, and common symptoms include difficulty concentrating, feeling overwhelmed and constantly worrying. It was said that this is likely to have been a significant factor in what occurred.

The company’s knowledge of Patrick’s depression was highlighted, as was its duty of care to all employees along with the lack of meaningful support and reasonable adjustments.

The hearing was told Patrick’s long service meant he was being disciplined when other colleagues had simply been spoken to for similar offences. It meant the company was taking an inconsistent and unfair approach to the matter and he justifiably felt aggrieved and victimised.

Our representative said mitigation also included Patrick’s long service and exemplary disciplinary record, an expression of remorse and a heartfelt apology, that the behaviour was completely out of character, he was a trusted employee and had taken learning from what occurred.

Patrick was told that what he did was so serious he would normally be dismissed, but given the mitigation he was issued with a written warning.

The company also referred him to occupational health to get a better understanding of how it could support him with his depression. It also implemented an initiative to support employees with their mental health.

Patrick kept his job after the redundancy consultation was completed.

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611