Employment Law

Incapability Dismissals

Contrary to common belief ‘ill health’ is a potentially fair reason for dismissal since it relates to the employee’s capability to perform the function that they had been employed to do. However, in the context of incapability dismissals, the Employment Tribunal will scrutinise the procedures followed by the employer prior to termination, in order to figure out whether or not the decision to dismiss was reasonable in the circumstances. A ‘reasonable’ employer would usually be expected to think about all the relevant medical evidence, consult with the employee and consider whether there are any steps that could be taken to help the employee in returning to function. (Employers ought to also be mindful of the disability discrimination legislation and the need to make reasonable adjustments.)

But what if the employee’s ill-wellness was caused by the employer in the first location? Need to this be taken into account when deciding whether the employee’s dismissal was reasonable?

This question was recently addressed by the Employment Appeal Tribunal (Eat) in the case of Royal Bank of Scotland Plc v McAdie (2006).

The Facts

Ms McAdie went off sick with function-related anxiety following her employer’s failure to adequately address her grievances and the intimidating manner in which the method had been handled. Soon after 9 months’ absence, Ms McAdie was referred to an occupational health doctor who diagnosed “severe adjustment disorder, secondary to alleged work-location problems, such as harassment”. The doctor expressed doubt that the condition could be treated due to the depth of ill-feeling held by Ms McAdie and concluded that a return to function appeared impossible. Following this report, Ms McAdie was dismissed on grounds of incapability. She subsequently brought a claim for unfair dismissal.

The Employment Tribunal initially upheld her claim, finding that her ill-well being had been caused by the manner in which the Bank had dealt with her grievance and that this was crucial in determining the fairness of the dismissal. In the Tribunal’s opinion “no reasonable employer would have dismissed in these circumstances, due to the fact no reasonable employer would have found themselves in these circumstances. A reasonable employer would have investigated the matter effectively at an early stage.”

EAT’s Choice

However, the Consume overturned this choice. In their view, the truth that an employer may possibly have caused the incapacity did not mean that it could never impact a fair dismissal. Whilst the cause of an employee’s illness was a factor to be taken into consideration, the focus need to constantly be on the reasonableness of the employer’s actions in the circumstances that existed at the time of the proposed dismissal – not regardless of whether the employer ought to have got itself into those circumstances in the initial location.

In the present case, the medical evidence was extremely clear and the basic truth was that there was no alternative to dismissal. The Bank’s decision could not consequently be said to be unreasonable. The appeal was allowed and the claim dismissed.

Comment

The case of McAdie serves as a beneficial reminder of the dividing line between unfair dismissal claims and personal injury claims. Save in the context of discrimination circumstances, the Employment Tribunal has no jurisdiction to hear claims for personal injury. The suitable course of action for an employee who suffers injury (physical or mental) as a result of a breach of duty by their employer, is to bring a personal injury claim in the civil courts. Nevertheless, this will demand the employee to show that the injury suffered was reasonably foreseeable and this can prove to be a significant hurdle, especially in “function-related anxiety” instances.

AND IN OTHER NEWS…

Flexible Working Extended to Carers

The Government has published the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006, which extend the correct to request flexible working to particular carers of adults. The Regulations will come into force on the 6 April 2007 and will extend the proper to request flexible working to workers who are, or expect to be, caring for a person who is over the age of 18 and in want of care, and who is either: married to, the partner of, or the civil partner of the employee a relative of the employee or living at the same address as the employee. The appropriate is subject to a qualifying period of 26 weeks continuous employment.

Disability by Association

Carers of disabled individuals may acquire further legal rights following the referral of Attridge Law v Coleman to the European Court of Justice. Though most discrimination legislation protects workers from detrimental treatment on the grounds that they associate with somebody in a protected group (e.g. a white employee dismissed for marrying a black individual), the same does not apply to the Disability Discrimination Act 1995 (DDA).

On the face of it, the DDA only applies if the employee themselves are a “disabled person”. The concern just before the ECJ is regardless of whether the DDA should be given a wider interpretation so as to prohibit discrimination of an in a position bodied employee on the grounds of their association with a disabled individual. If the claimant’s case is upheld, the scope of the DDA will be considerably extended.