Last year we reported on DB Schenker Rail (UK) Ltd v Doolan, which was authority for the proposition that the employer could reasonably rely on the poor prognosis given by the employer's consultant Occupational Health Therapist, rather than the employee’s GP when deciding whether or not to dismiss on grounds of capability.
Another employer-friendly decision relating to long term sick was handed down by the EAT late last year. In Dundee City Council v Sharp UKEAT/0009/11/BI, the EAT concluded that the ET, who had ruled the dismissal of Mr Sharp unfair, had set the bar too high and considered irrelevant factors as material.
Mr Sharp was a long serving Joiner of some 35 years. He took sick leave from September 2009 citing “nervous debility”(sic) as the cause of his absence. After various medical assessments over the course of the next year, his employer warned him in August 2010 that it was considering dismissing him on grounds of capability. A meeting was called in September in which the Claimant admitted that he was no better and no further forward since his last meeting. Given all of the medical information before the dismissing officer, including the Claimant’s own poor prognosis, the employer took the decision to dismiss.
The EAT ruled that the ET had erred in finding that the employer should have, before dismissing Mr Sharp, taken more medical evidence from his GP (partly because no final sick certificate had been issued). The employer was entitled to rely on what the Claimant himself had said and to reasonably conclude that there was no “light at the end of the tunnel”.
Moreover the ET was wrong to place weight on the employees' length of service (which is irrelevant) and to conclude that a “fair procedure is particularly important in ill health cases”. It is no more important than in other cases.
In the EAT’s view the test set out in Elmbridge Housing Trust v O’Donoghue had been satisfied namely “whether, in all the circumstances, the employer can be expected to wait any longer and, if, so how much longer… and in dismissing, was that within the range of reasonable responses which an employer in the circumstance could adopt”.
This case provides a valuable guide to employers and is recommended reading to anyone in a similar situation.
