Labour & European Law Review Weekly Issue 229 04 August 2011
To avoid a finding of unfair dismissal on the ground of capability, employers have to show they have a reasonable belief that the person is unable to return to work. In DB Schenker Rail (UK) Ltd v Doolan, the Employment Appeal Tribunal (EAT), said that the decision to dismiss was ultimately a managerial, not a medical one, and that employers have to make their own assessment (informed by experts) of the risks involved in a return to work.
Mr Doolan worked in a job that was considered to be ‘safety critical’. Towards the end of 2004, he was treated for stress/depression which he attributed to his workload. He returned to work in June 2005 but was signed off again in August 2007, a few months after taking on the more responsible post of production manager.
His GP said he was fit to return in February 2008, but the company referred him to an occupational health (OH) doctor, who also said he was fit to return. It then instructed an occupational psychologist who concluded that he was likely to succumb to further periods of stress-related absence in his current role. She suggested that he look for a different job within the company.
At a meeting on 12 May, Mr Doolan said it was highly unlikely that he would go off sick because of stress again, but that if he did, the company could start disciplinary proceedings immediately. The company then decided that it did not think he could return to his role of production manager and, after having considered whether there were alternative positions available, dismissed him on 18 June on capability grounds.
Although the Tribunal accepted that the reason for dismissing Mr Doolan was capability, it held that he had been unfairly dismissed because the company did not have reasonable grounds for its belief that he could not return to work as a production manager.
It was outside the bands of reasonable responses to reject Mr Doolan’s offer to return to work, given the undertaking he had made. It was also outside the bands of reasonable responses to dismiss Mr Doolan as the decision contradicted what his own GP and the OH doctor had said. And, finally, it was unreasonable because the psychologist had not said that he could not return to his duties as production manager.
The EAT said that the Tribunal had to consider three questions - whether the company genuinely believed in the reason that it gave; whether it was a reason reached after a reasonable investigation; and whether they had reasonable grounds on which to come to that conclusion.
It said that although employers are required to ascertain the “true medical position” for a dismissal to be fair, this did not mean that employers had to carry out more of an investigation into a medical, as opposed to a misconduct, case.
On that basis, the issue for the Tribunal to decide was whether a reasonable organisation could find, from the material before them, that Mr Dooley was not capable of returning to his role of production manager.
It also had to bear in mind that the decision to dismiss is a managerial, not a medical one.
Although medical reports can help employers to make an informed decision, ultimately it’s for them to decide whether to allow someone to return or dismiss them on the grounds of capability. They have to make their own assessment (informed by experts) of the risks involved in a return to work.
It is not for a Tribunal to substitute its view for that of the employer as to whether or not the claimant should have been dismissed on the evidence available.
This decision confirms that it is appropriate for Tribunals to apply the three stage “Burchell” test, more familiar in misconduct conduct dismissal cases, to capability dismissals.