Enquiring mind

What is the required standard of enquiry of the employer in a case involving a capability dismissal? Tim Lang analyses a recent Employment Appeal Tribunal decision.

In D B Schenker Rail (UK) Ltd v Doolan UKEATS/0053/09/BI the Employment Appeal Tribunal upheld the appeal against the Tribunal’s finding of unfair dismissal and remitted it for rehearing. The Employment Tribunal had no basis for finding that the employers were not entitled to conclude, on the expert evidence available to them, that the claimant was fit to return to work to perform the job of production manager and had also substituted their own view as to whether or not the claimant should have been dismissed for that of the reasonable employer.

The EAT also held that uncertain terms of the re-instatement order to restore the claimant to the respondent’s pension scheme amounted to an error of law.

Facts

The respondent’s business was the provision of rail freight services. The claimant was employed by them from 27 May 1974 to 10 October 2008, when he was dismissed. The claimant worked as an Operations Manager from 2004 and became unwell, receiving treatment for ‘stress/depression’. He returned to work in 2005. He was appointed to Production Manger in 2007, however was signed off work in August 2007. By January 2008, his GP certified him as fit to return to work. The claimant saw his GP Dr McNeish, who did not refer him to an occupational psychologist despite the respondent requesting so. The respondent considered a report was required, and instructed Brenda Isles, an occupational psychologist, to do so. Based on Ms Isles' report, the service centre manager did not believe it was possible for him to return to his previous post. The claimant was dismissed on capability grounds. The claimant decided to take his pension early.

The Tribunal accepted that the respondent’s reason for dismissing the claimant was capability. The Tribunal was critical of the respondent for the weight that they placed in Ms Isles’ report and concluded that the claimant was unfairly dismissed. The respondent did not have reasonable grounds for believing the claimant to be incapable of performing as a Production Manager. The Tribunal concluded in any event that the respondent had acted unfairly. The Tribunal ordered both compensation and reinstatement of the employee, including all pension rights.

Decision

The EAT overturned the Tribunal’s decision that the dismissal was unfair and remitted it for re-hearing. Although a capability rather than a conduct dismissal, the Burchell analysis was held to be relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relation to capability. The EAT considered that the East Lindsay District Council case which requires the employer to ascertain the ‘true medical position’ not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. All that is required is a reasonable investigation into the matter to be carried out. Whilst medical reports may assist the employer to make an informed decision on the issue of capability, it is ultimately one which the employer has to make. It is not for the Tribunal to substitute its own view for that of a reasonable employer, whether in considering whether or not the employer had reasonable grounds for its belief in the reason for dismissal, or whether the dismissal was within the range of responses open to an employer where a potentially fair reason existed.

The EAT also held that in relation to the pension issue, a reinstatement order to restore the claimant to the respondent’s pension scheme should only require an employer to do what was within its power, and held that the uncertain terms of the order made amounted to an error of law.

Comment

Employers should therefore note that in a capability dismissal, the required standard of enquiry of the employer is from the Burchell test, namely whether the respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude they did. The requirement to ascertain the ‘true medical position’ does not require a higher standard of evidence than in a conduct case. The decision to dismiss should ultimately be a managerial one, and not from the author of a medical report. Employers should therefore make their own assessment as to the risk to an employee’s health from returning to work.

Tim Lang is a partner and Head of the Employment practice area at Weightmans. He can be contacted on 0121 200 8111 or This email address is being protected from spambots. You need JavaScript enabled to view it..