Cox v Essex County Fire and Rescue Service

Overview:

Mr Cox was employed by Essex County Fire and Rescue Service, but was suspended, and later dismissed in 2010 for “aggressive, threatening and intimidatory attitudes and behaviours”. Mr Cox did not agree with the definitions of his behaviours and claimed to be suffering from bipolar disorder. His employer referred him to occupational health and attempted to obtain information from his GP to confirm the diagnosis, however Mr Cox did not consent to release this information. Essex could not confirm the diagnosis, and therefore in conjunction with occupational health could not confirm that he was covered by the Disability Discrimination Act. The employment tribunal and employment appeal tribunal agreed with this conclusion and Mr Cox’s case was dismissed.

Summary:

Mr Cox worked for Essex Country Fire and Rescue Service from March 2007, reporting to Mr Clayton.

He initially completed a pre-employment medical questionnaire, declaring that he suffered from mild depression as a result of previous redundancies and was taking anti-depressants, however affirmed that he did not suffer from a “health condition or disability which affects [his] ability to carry out normal day-to-day activities”.

In September 2008 Mr Cox made a personal injury claim after slipping on water and falling down several hard steps at work. He was absent for three and a half weeks. In June 2009 in response to concerns about his ability to perform his job he told Mr Clayton that he was seeing a cognitive behavioural therapist, had severe depression and had suffered severe concussion from the accident. He was referred to the internal occupational health department.

Dr Murphy from occupational health advised that Mr Cox was unlikely to have a disability that was covered by the disability discrimination act. He wrote:

“Mr Cox believes he is undertaking his duties successfully, and in that instance sees no need for management support. He acknowledged some performance matters were raised in June, that he feels occurred as a consequence of then persisting symptoms of his fall, these symptoms are resolved and he feels no more performance concerns are active. He recognises that he may be more aggressive than usual in his attitude to the workplace, but not inappropriately so. If performance or conduct issues are thought to be present at the moment, my advice is that they are best dealt with via appropriate management procedures.”

In September 2009 Mr Cox was suspended from work pending an investigation into alleged “aggressive, threatening and intimidatory attitudes and behaviours” towards colleagues. Mr Cox was informed that the allegations could lead to dismissal, but felt that his behaviour was entirely acceptable.

A few days later Mr Cox informed Mr Clayton that he had been suffering from bipolar disorder and had recently been seeing a psychiatrist, who had confirmed a diagnosis of bipolar disorder. Mr Cox was referred to occupational health again soon after.

Dr Murphy confirmed that he was seeking reports from Mr Cox’s GP and specialist as he was not clear whether bipolar disorder was “an active diagnosis”. Dr Murphy also confirmed that he felt it was unlikely that Mr Cox would return to his role due to the “strength of feeling Mr Cox displays”.

However, on the advice of his personal injury lawyer, Mr Cox refused consent for his GP and specialist to respond to Dr Murphy.

Mr Cox was dismissed in February 2010, and instigated tribunal claims for disability discrimination, unfair and wrongful dismissal.

By the time of the hearing Mr Cox presented evidence confirming his diagnosis of bipolar disorder, and Essex accepted his disability. However at the time of the disciplinary proceedings and dismissal, Essex did not know and could not have reasonably been expected to know that Mr Cox was disabled, according to the tribunal decision. Essex had done all that could have been expected to find out whether Mr Cox was disabled, but Mr Cox had refused to release the relevant medial information on the (ill advised) instruction of his personal injury lawyer, and therefore there was “no definitive diagnosis of the Claimant being bipolar”.

The claim was dismissed at the tribunal, and then again at the appeal tribunal.

Read the full decision here.