Chris Cox, RCN Director of Legal Services: Legal update

Capability – a managerial decision

The Employment Appeal Tribunal (EAT) has reiterated that the decision to dismiss an employee in a case of capability is a managerial one, and not a medical decision by doctors.

In D B Schenker Rail (UK) Ltd v Doolan, the employee, who worked in a demanding role as a production manager with key safety responsibilities, had suffered periods of stress-related illness.

After a further period of stress related-absence, his GP certified him ‘fit’ to return to work, but given the nature of his role, his employer commissioned reports from an occupational health physician and occupational psychologist.

The conclusion of the further medical reports was that, even with a phased return to work, he would struggle to carry out the demanding nature of his job, and was at risk of future illness. The worker was invited to consider alternative jobs, but rejected this invitation and was eventually dismissed on capability grounds.

Future health and wellbeing

The EAT overturned the tribunal decision because it had substituted its own view for that of the employer. This is forbidden.
In considering its duty of care towards the worker, the EAT held that the employer was obliged to consider the employee’s future health and well-being as well as their own interests in having him perform the job in question.

The GP’s certificate referred only to his general fitness to work, and not his ability to carry out a particular role, and risks associated with that job. The employer was therefore entitled to rely on its own medical evidence.