Depressed worker fired for making ‘offensive’ drawings was unfairly dismissed

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A tidal data analyst who was fired from his job for gross misconduct, after his colleagues discovered a notebook containing “sexually violent drawings” and negative comments about the people he worked with, was unfairly dismissed, a tribunal has found.

Kevin Ferguson was also found to have suffered disability discrimination and wrongful dismissal at the hands of his employers, who were “selective” in the information they gathered to make a case for gross misconduct.

Ferguson worked in a small team of four people at the National Oceanography Centre (NOC) laboratory in Liverpool between 1 June 1996 and 21 July 2015.

He had taken considerable time off work between 2012 and 2013 for various ailments, and in 2013 his wife, who worked in the HR department at the centre, became ill with cancer. Ferguson was signed off work in July 2013. He later developed depression and took 19 absences from work between July 2013 and May 2014.

Ferguson’s colleagues became concerned that his “level of absence and the unpredictability of his attendance were impacting on the team”, the tribunal heard.

In December 2014, Ferguson was formally signed off with depression for the first time, at which point his working relationship with his colleagues was becoming strained because of his irritability and tendency to argue in the office.

It was suggested that he return to work in February 2015 but, on 11 February, Ferguson’s line manager, Colin Bell, gave a report to his line manager, Mr Forshaw, that outlined concerns about the impact Ferguson’s return to work would have on another colleague, Jill Burgess, referencing what were described as his ‘bullying’ attitudes.

Ferguson had been referred to an occupational health team for his depression, and a report on his behaviour produced in February 2015 stated that, while the exact nature of his condition was not known, “Kevin is not fit to carry out his current duties at present but I anticipate he will be able to do so in the foreseeable future”.

In March 2015, one of Ferguson’s colleagues discovered a notebook belonging to him in the office, which “included jottings relating to meetings and phone conversations, and drawings and comments that appeared to be inappropriate and of a sexual nature”. The notebook was given to Bell, who took it away and determined to raise it with Ferguson on his return to work.

Ferguson signalled his desire to come back to work at the end of April, and it was decided that a phased return would be considered before he returned full time, because of his issues with depression and the reservations held by other members of staff about his return. To prevent Ferguson’s return making Burgess uncomfortable, the organisation would rearrange the office so the two were not sitting next to each other.

In May 2015, Forshaw emailed Ms Pringle-Stuart, director of finance and operations, saying that in the course of rearranging the office in anticipation of Ferguson’s return, a notebook had been discovered that contained “sexually violent drawings”, described as “degrading to women”, and “negative comments about work colleagues”.

He additionally indicated a concern that this may be an indicator of wider mental health issues and could pose a threat to other staff.

On 21 May 2015, the NOC’s people and skills manager, Ms Hibberd, wrote to Ferguson informing him that the business had found material that was “offensive, degrading, sexual and violent”, and that he was therefore suspended pending investigation.

Under the terms of reference for the investigation, it was written: “NOC considers the content of the notebook is professionally causing the breakdown of trust in Mr Ferguson and potentially gross misconduct.”

Ferguson claimed the drawings in the notebook were a product of his poor mental health, and apologised during the subsequent disciplinary process, stating that he “would not have wanted” colleagues to see them. Following an independent investigation, Ferguson was summarily dismissed with effect from 21 July 2015.

On 15 August 2015, Ferguson sought to appeal the decision, contending that he was not responsible for the notebook getting into an open environment and that the suspension letter sent to him in May implied that he had been found guilty of the drawings before any process had been initiated.

However, the appeal ultimately found the decision to dismiss him for gross misconduct was appropriate.

At tribunal, it was ruled that Ferguson had been subject to disability discrimination, as the NOC “knew or ought reasonably to have known that the claimant was disabled as at December 2014”.

“We are satisfied that the circumstances – namely the inappropriate inserts in the notebook that resulted in his dismissal – arose in consequence of the claimant’s disability,” the judge said. “We have already found that the respondent had the requisite knowledge of such disability at the time.”

The independent report produced ahead of Ferguson’s disciplinary investigation additionally caused concern, with the judge stating that it “expresses opinions and conclusions that the panel might wish to make”, and was selective in the evidence it gathered to make a case for gross misconduct.

“Save for selected comments, the transcript of the claimant’s interview and his explanations for the contents of the notebook were not supplied or annexed to his report, nor was any witness statement prepared to explain the claimant’s position,” the judge said.

The judge added that the documentation included “comments that reveal partiality and conclusions reached or, at best, conclusions that might be reached that were for the disciplinary panel and not the investigating officer to make”.

In addition, insufficient evidence was provided to explain Ferguson’s poor state of mental health, and the bent of evidence given against him was biased. Subsequently, the decision to dismiss him fell outside the band of reasonable responses.

“In the context of an employee of senior standing, with no previous disciplinary record against him, with a background of acknowledged illness (whether or not the respondent recognised it as a disability at the time), and the tragic personal circumstances at the time (the claimant’s wife died in October 2015) we judge that this makes the panel’s decision to dismiss plainly unfair,” the judge said.

It was finally passed that Ferguson had suffered wrongful dismissal, as the tribunal was satisfied that his behaviour was not “wilful or deliberate or constituted gross negligence in the context of something that we find the claimant had no control over at the relevant time”.

The case was settled at a remedy hearing in October 2016.

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