Capability dismissals are often complex and require a consideration of both the needs of the business in having the employee at work, and the wellbeing of the employee who is suffering ill health. The recent EAT decision of DB Schenker Rail (UK) Ltd v Doolan sets out the principles for employers.
It is almost always necessary to obtain some medical evidence regarding the employee’s capabilities, in the short and long term, with a view to the employer making decisions about whether the employee is capable of returning to their position at all, and if so, what temporary or permanent adjustments may be required to facilitate this. The decision, however, should be made by the employer, whose business it is, and not the medical professionals.
Employers are (with any type of dismissal) required to have a potentially fair reason – in this case, capability. The employer must have a genuine belief in this reason, and it must have been arrived at after a reasonable investigation and on reasonable grounds. This case tells us that the standard of investigation does not need to be any more detailed than for any other forms of dismissal, for example, conduct. The employer must ask the right questions of the medical professionals regarding the prognosis and capabilities of the employee, and then use that information to form its own decision as to whether it is realistic for the employee to continue in their role, and, if not, whether an alternative can be offered. It is for the employer to assess the risks to the employee and whether from a business point of view it is practical for the employee to continue in the job.
Should a claim be brought an Employment Tribunal may not substitute its own decision, i.e. make a decision bases on what it would have decided if it had been in the employer’s shoes.
When dealing with a capability dismissal, bear the following in mind;
- It is usually necessary to obtain some medical advice. Ask the right questions and provide details of the employee’s role.
- Discuss the medical evidence with the employee at a meeting before making a final decision.
- Give careful consideration to whether any adjustments could be made which would enable the employee to continue.
- Before making a final decision to dismiss, consider whether there are any suitable alternative positions which you could offer.
- Always remember that a serious and long term medical condition may also amount to a disability under the Disability Discrimination Act 1995, in which case additional responsibility for considering, and if appropriate implementing, reasonable adjustments will apply.