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

In a similar set of circumstances to the “Horror film case”, a data analyst who was fired 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.

Kevin Ferguson was also found to have suffered disability discrimination and wrongful dismissal.

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 a number of health complaints 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 sporadic absences from work between July 2013 and May 2014.

In December 2014, Ferguson was formally signed off with depression for the first time.

At the same time, it was noted that his working relationship with his colleagues was becoming strained because of his irritability and tendency to argue in the office.

He was due to return to work in February 2015 but, on 11 February, Ferguson’s line manager (Bell), gave a report to his line manager (Forshaw), that outlined concerns about his return to work because of the relationship concerns with colleagues, especially a female one, Burgess, referencing what were described as his ‘bullying’ attitudes.

Ferguson was referred to occupational health for his depression, and a report produced in February 2015 which 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 to raise it with Ferguson on his return to work.

Ferguson decided to come back to work at the end of April on a phased return.

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 appealed believing that he wasn’t responsible for the notebook being made public and also believing that the content of his suspension letter communicated that a decision into his guilt had already been reached, prior to any hearing.

His appeal was unsuccessful.

At tribunal, it was ruled that Ferguson had been subject to disability discrimination, as the NOC knew of his disability and it was determined that the images arose as a consequence of his mental health.

The report produced ahead of Ferguson’s disciplinary investigation additionally caused concern as it expressed opinions for the disciplinary panel to consider and it specifically excluded information from occupational health.

Not only does this case underline the importance of a robust investigations process, but it demonstrates the importance of not ignoring health related mitigations in disciplinary and dismissal cases due to discrimination issues.