Case Law Update: Topps Tiles Plc v Hardy [2023] EAT

In this case, Mr Hardy who had been employed by Topps Tiles since 2002, filed a complaint alleging unfair dismissal and disability discrimination after being dismissed from his position as a store manager in November 2019. He claimed to have suffered from depression for twenty years and insisted that his employer was aware of this fact. According to him, his disability had been disclosed during a discussion with an area manager in 2016, but he did not receive any support from the company. In addition, his line manager became aware of his health issues when he broke down in tears during a meeting with her in October 2019. It was shortly after this incident that Hardy had an altercation with a verbally abusive customer in the store, which resulted in his suspension and subsequent dismissal.

The Employment Tribunal (ET) ruled that the dismissal had amounted to discrimination arising from a disability (as his depression was found to be a significant contributing factor in his behaviour). The dismissal was therefore also found to be unfair and the tribunal determined that Mr Hardy had not contributed to his own dismissal, meaning any compensation awarded would not be reduced. The ET justified this decision by stating, “We find that there was no contribution because we do not agree that a reasonable employer could regard the Claimant’s handling of the incident, although flawed, as an act of gross misconduct given the overall circumstances of the case.” Topps Tiles appealed the ruling on whether or not there was contributory fault by the employee.

The Employment Appeal Tribunal (EAT) accepted the appeal. The EAT found fault with the ET’s approach, as it had focused on whether the employer was justified in considering the conduct as gross misconduct, rather than evaluating the actual behaviour of Mr Hardy and its impact on the dismissal. Consequently, the case was remitted back to the same ET, which will now reassess the appropriate remedy.

This can serve as a reminder that employers must be attentive and responsive to employees with disabilities and ensure that they are aware of mental health issues and how they manifest themselves. Furthermore, they must be aware that factors such as this must be taken into account when determining whether or not there is any mitigation for an employee’s conduct and certainly as to whether or not a dismissal falls within the band of reasonable responses. If reasonable adjustments had been explored and put in place to support the employee, then it may have been that the altercation with the customer could have been avoided altogether.

It also reminds us that the compensation element of a tribunal award is subject to reductions if it is found that the employee had any ‘contributary fault’. In short, in this case it appears the ET considered only whether the employer was right to dismiss rather than whether the employee’s actions were ‘culpable and blameworthy’, which are two different things. The ET will now need to review this.