Dismissal decision is a managerial one, not a medical one
Overturning a tribunal’s finding of unfair dismissal, the EAT has held that an employer had properly decided on the basis of the evidence available to it, which included a report from occupational health and a clinical psychologist, that an employee was not fit to return to his stressful managerial role. His dismissal for ‘capability’ (or rather the lack of it) was fair. The EAT reiterated that the decision to dismiss an employee is a managerial one and not a medical one. An employer should make its own assessment of the risk to an employee’s health from returning to work.
Mr Doolan worked for D B Schenker Rail from 1974 to October 2008 when he was dismissed. From 2004 he had worked as the Operations Manager, a very safety-critical role. Towards the end of 2004 he became unwell and was treated for ‘stress/depression’ which he attributed to his workload. He returned to work in June 2005. In 2007 he was appointed as a Production Manager which involved significantly more responsibility, particularly for staff issues. By June 2007 he felt that the stress condition from which he had previously suffered was returning and that his workload was ‘getting on top of him’. He was signed off work as unfit on account of work-induced stress in August 2007. By January 2008, he was keen to return to work. His GP certified him as fit to return to work on 1 February 2008.
He was asked by the employer to consent to release of his medical records. He did so and the HR Manager sought advice from an occupational health (OH) physician. The HR Manager provided Mr Doolan’s GP records for the previous 4 years to OH and explained that although they were prepared to look at light duties with reduced hours for a limited period, Mr Doolan would be expected to return to work to carry out his duties fully. OH, was asked for its opinion as to whether Mr Doolan would be able to carry out the full duties of Production Manager. It was also asked to make a referral on to an occupational psychologist. OH, believed that Mr Doolan was ready for a phased return to work but would not commit itself further as to whether he could cope with the demands of the role. OH, did not refer Mr Doolan to an occupational psychologist but the HR Manager decided that such a referral was required. She instructed a psychologist who had been engaged by the employer previously and knew its business to prepare a report on Mr Doolan. The occupational psychologist’s report cast doubt on Mr Doolan’s robustness for his demanding job: ‘It is unlikely that [he] could convincingly declare that he would be able to return to work in a demanding environment, without potentially succumbing to further periods of stress-related absence in the future’. However, the psychologist stressed that the decision as to Mr Doolan’s fitness to return to work was not hers to make. The report was discussed with Mr Doolan who said he didn’t think he’d go off sick again. Despite this, he was dismissed on capability grounds, the employer placing considerable weight on the psychologist’s report. He claimed unfair dismissal.
The Tribunal Decision
A tribunal upheld his claim. It made various criticisms of the employer, among them its reliance on the psychologist’s report (OH having not recommended a referral). The employer appealed.
The Employment Appeal Tribunal Decision
The EAT allowed the employer’s appeal and sent it back for rehearing. In a capability dismissal the standard of enquiry required of an employer is from the familiar Burchell test. The requirement to ascertain the ‘true medical position’ (see East Lindsay District Council v Daubney) does not require a higher standard of evidence than in a conduct case. The tribunal should have asked the following questions: did the employer genuinely believe in its stated reason; was it was a reason reached after a reasonable investigation and did it have reasonable grounds on which to conclude as it did? In other words, could a reasonable management find, from the material before it that Mr Doolan was not capable of returning to the post of Production Manager? The decision to dismiss is, properly, a managerial one, not a medical one: ‘whilst medical or other expert reports may assist an employer to make an informed decision on the issue of capability, the decision to allow someone to return to work or to dismiss for reasons relating to capability is, ultimately, one which the employer has to make. It is not a decision that is to be dictated by the author of a report. Quite apart from considerations of [its] duty not to dismiss an employee unfairly, an employer owes a common law duty of reasonable care to the employee and [is required] to make [its] own assessment of the risk of a return to work causing a recurrence of the employee’s ill health, albeit that any such assessment will normally be informed by the content of an expert report or reports.
Mr Doolan’s employer quite properly considered the issue from its own perspective and also looked at it from Mr Doolan’s wellbeing. It carried out a reasonable investigation. The EAT dismissed all of the tribunal’s criticisms of the employer’s reliance on the psychologist’s report. To commission such a report was a management decision and ‘in the case of an employee such as [Mr Doolan] who had … suffered two significant bouts of stress-related illness caused by work, the obtaining of the views of an occupational psychologist would not be unusual’.
D B Schenker Rail (UK) Ltd v Doolan