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Test to be applied in capability dismissal the same as for conduct dismissal.
Doolan worked as a production manager for the organisation. This was a safety critical role and one which he found stressful. Doolan had been absent from work for a period earlier in his career, when he had suffered from stress in his role as an operations manager. Towards the end of 2007, the stress was such that he took a period of sickness absence. He felt ready to return to work in early 2008.
Before allowing Doolan to return to work the organisation carried out a medical investigation. They sought medical reports from his doctor, referred him to an occupational health doctor and also to an occupational psychologist. The psychologist expressed concern that he would experience further problems if he returned to his role as production manager. Despite these concerns, Doolan still wanted to return to the role of production manager, saying that the employer could dismiss him if a further period of absence occurred. However, the employer was not convinced that Doolan could return to the role and offered various alternative roles.
Doolan refused these and was subsequently dismissed on the grounds of capability.
The Employment Tribunal found that this was an unfair dismissal but the EAT overturned this decision. The EAT ruled that the three steps in BHS v Burchell [1978] - that the employer carried out a reasonable investigation, leading to a reasonable belief in the need to dismiss and then imposed a reasonable sanction - applied to capability as well as conduct dismissals. The medical investigation had been thorough, there was a reasonable belief that further periods of absence due to stress would occur and in the circumstances, it was appropriate to dismiss.
Comment for employers
Applying the Burchell case to conduct dismissals is something that many employers are familiar with. However, this has not been as clearly applied to capability dismissals in the past. This case emphasises the need to ensure that a capability dismissal is based on a thorough investigation, followed by a reasonable belief in incapability.
