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Capability dismissals are usually complex and protracted matters. Such situations often require a consideration of both the needs of the business in having the employee at work, balanced against the wellbeing of the employee who is suffering ill health.
The recent EAT decision of DB Schenker Rail (UK) Ltd v Doolan provides useful guidance for Employers in this matter.
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.
This case tells us that 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.
In summary, when dealing with a capability dismissal, Employers should consider the following:
- 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 Equality Act 2010, in which case additional responsibility for considering, and if appropriate implementing, reasonable adjustments will apply.
For any more information on this are or for specific advice on any other employment issues please contact WBR on 0845 600 4996 or e-mail us at info@williambrose.com.
