Capability dismissal after six weeks’ suspension was unfair #cipd# dismissal

CIPD: Dismissing a doctor receiving treatment for alcoholism was unreasonable. In NHS Fife Health Board v Stockman the EAT had decide whether it was fair to dismiss an employee on grounds of capability without fully investigating all the medical evidence surrounding the case.

Facts

Stockman, a doctor, was convicted of driving while under the influence of alcohol.  His registration with the General Medical Council (GMC) was suspended on an interim basis for 18 months.  He was signed off as unfit for work while undergoing a course of treatment for alcoholism involving attendance at a centre most of the day and part of the evening.  Given Stockman’s suspension from the medical register, the employer said he would have to be dismissed on grounds of capability unless he could be redeployed. No alternative position was available. At an internal appeal hearing against the dismissal, Stockman presented evidence to the effect that:

  • he was likely to respond to alcoholism treatment
  • his suspension from the GMC was likely to be revoked
  • most doctors in his position did recover
  • other NHS employers would not dismiss at an early stage of receiving treatment.

The appeal failed, Stockman was dismissed after six weeks on suspension, and claimed unfair dismissal.

Tribunal

An employment tribunal found the dismissal for capability was unfair. The employer argued that it did not need any medical evidence because it would have made no difference – Stockman’s registration as a doctor was suspended so he could not fulfil his contractual duties.  But the tribunal found that if the employer had taken a less strict approach to the operation of its policy, it may well have considered that an up to date medical report would have been valuable when reflecting on what would have been reasonable in the circumstances.

The tribunal noted that the test of reasonableness involved looking at the actions of an employer in the same line of business or profession. The expert medical evidence presented showed that NHS employers would always get an up to date medical report, that a doctor was unlikely to be dismissed while receiving treatment, and the majority succeeded in getting back to work.  In addition, an HR specialist, who had been an assistant secretary at the doctors’ professional body, the BMA, for seven years, stated that she had never known of a doctor being dismissed in these circumstances. So, the dismissal was outside the range of reasonable responses.

The employer appealed, arguing that the tribunal had substituted its own view for the employer’s and had wrongly admitted evidence of the supposed attitude of other health service employers.

EAT

The Employment Appeal Tribunal rejected the appeal, holding that the tribunal was entitled to decide that the employer had applied its policy in such a way as to make its decision to dismiss inevitable, and had acted unfairly in deciding to dismiss Stockman without having considered vital information. The medical opinion evidence was admissible and the tribunal was entitled to hold that the employer had not carried out a reasonable investigation and had not acted fairly in all the circumstances.

Comment

The practical implications arising from this case are threefold. In circumstances where an employer is questioning employees’ ability to carry out their duties:

  • any decisions must be based on the most up to date medical opinion
  • where employees provide their own medical evidence, it must be given careful consideration.
  • if there is any doubt about the medical evidence, the employer should obtain its own medical report, before taking a decision to dismiss.
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