Employment Appeal Tribunal provides guidance on capability dismissals
The Scottish division of the Employment Appeal Tribunal (EAT) has handed down its decision in DB Schenker Rail (UK) Ltd v Doolan . The decision confirms that, while medical evidence plays an important part in a capability dismissal, it is not necessarily determinative. The EAT says that the decision to dismiss is a managerial one, not a medical one. Doolan is a case which is likely to delight some employers, while causing others to scratch their heads in confusion. Employment lawyer David Christie, partner with Proactive Employment Lawyers, summarises the decision.
The EAT's decision in Doolan is one of the most important on capability-related dismissals for several years and is to be widely cited in future cases about the status of medical reports in unfair dismissal and disability discrimination cases.
The case is authority for the proposition that when an employer dismisses someone for a reason relating to capability, the standard of enquiry required of an employer is the same as it would be in a case where the dismissal was for a conduct-related reason. In other words, the standard of proof is the same as the one laid down in the familiar Burchell case, which requires employers to have a genuine belief in an employee's guilt following a reasonable investigation. So in a capability-related dismissal, employers have to be able to prove something similar - that they have a genuine belief in the employee's incapability, following a reasonable investigation.
The EAT in Doolan considered the old case of East Lindsay District Council v Daubney  ICR 566. Daubney established that, in a dismissal based on an employee's ill-health, the absence of consultation will almost always render a dismissal unfair; and that before dismissal, employers are required to ascertain the "true medical position".
Commenting on this case in Doolan, the EAT said that this requirement - to get up-to-date medical evidence before dismissing someone - does not impose a higher standard on employers in capability cases than it does in misconduct cases. According to the EAT, the decision to dismiss someone is a managerial one, not a medical one; and employers should make their own risk assessment on an employee's health before allowing the employee to return to work.
In a crucial passage, Lady Smith says:
While medical or other expert reports may assist an employer to make an informed decision on the issue of capability, the decision to allow someone to return to work or to dismiss for reasons of capability is, ultimately, one which the employer has to make. It is not a decision that is to be dictated by the author of an report.
Quite apart from considerations of his duty not to dismiss an employee unfairly, an employer owes a common law duty of reasonable care to the employee and in cases, such as the present, requires to make his own assessment of the risk of a return to work causing a recurrence of the employee's ill health, albeit that any such assessment wil normally be informed by the content of an expert report or reports.
The decision is a useful one for employers, allowing them (in exceptional cases) to distance themselves from the content of medical and occupational health reports. However, caution is required. In previous cases (such as Hartman (2005)) employers have been held liable in negligence for not following the recommendations of occupational health reports. Where an employer is seeking to dismiss an employee - contrary to the terms or recommendations of a medical report - there requires to be a balancing of risks; and employers will greatly enhance their prospects of winning an unfair dismissal claim by carrying out some kind of documented risk assessment. Doolan illustrates, as other cases have before it, how the statutory test of 'reasonableness' in unfair dismissal legislation may interact with (and sometimes even conflict with) other legal obligations imposed through the law of health and safety, contract and negligence. For those advising employers in cases of this sort, it is necessary to think laterally about the full range of legal risks and to help employers to manage these risks in a practical way.
1. We have run many training courses for HR and line managers on the management of employees' ill-health and absence. For informaton on this, please e-mail
2. The Doolan case will be one of several that we will be covering at our next lunch bite on "Effective Sickness Absence Management", details of which are available here.