EMPLOYMENT—UNFAIR DISMISSAL—REASON FOR DISMISSAL

Court of Appeal, Civil Division
Buxton, Rix and Wall LJJ
31 July 2007

The fact that an employer has caused an employee’s incapacity relating to work, however culpably, can not preclude him forever from effecting a fair dismissal.

Christopher Over of Over Taylor Biggs for the employee.
Jane McNeill QC and Damian Brown (instructed by Brodies) for the employer.

The employee was continuously employed by the bank from 1983 until the date of her dismissal. Over the course of her employment she had become a valued employee. In 1995, following treatment for breast cancer, she took on a part-time role with less responsibility. In 2004, she was dismissed for long-term sickness absence. She expressly stated in correspondence that she did not want to return to work for the bank. Having exhausted the internal complaints procedure, the employee complained to an employment tribunal that she had been unfairly dismissed. She contended that the bank was responsible for her illness.

The medical evidence was unequivocal that she would not be able to return to work. The tribunal was of the opinion that no reasonable employer would have dismissed her in the circumstances because no reasonable employer would have found themselves in the present circumstances. It ruled that the employee had been unfairly dismissed. The Employment Appeal Tribunal (EAT) allowed the appeal on the basis that the tribunal had misdirected itself as to the law. The employee appealed to the Court of Appeal. The issue arose as to the circumstances in which an employer could fairly dismiss an employee on the basis of that employee’s “incapability for performing work of the kind which he was employed by the employer to do”, a potentially fair reason for the purposes of the Employment Rights Act 1996 (ERA 1996), ss 98(1) and (2)(a) when the employer’s conduct had either caused, or materially contributed towards, the employee’s
incapability.

LORD JUSTICE WALL:

His lordship considered, inter alia, McAdie v Royal Bank of Scotland [2006] All ER (D) 393 (Nov), London Fire & Civil Defence Authority v Betty [1994] IRLR 384, Edwards v Governors of Hanson School [2001] IRLR 733, [2001] All ER (D) 05 (Jan) and Frewin v Consignia Ltd [2003] All ER (D) 314 (Jul).
In its judgment, the EAT had observed:

“The question which the Tribunal should have asked itself was “was it reasonable for the Bank to dismiss Mrs. McAdie on 22 December 2004, in the circumstances as they then were, including the fact that their mishandling of the situation had led to her illness?

That was not the approach which the Tribunal avowedly took. The elegantly-expressed reasoning at para 87 of the Judgment—“no reasonable employer would have dismissed in these circumstances because no reasonable employer would have found themselves in these circumstances”—focuses explicitly not on what it was reasonable for the Bank to do in the circumstances in which it found itself (however culpably) but on whether it should have got into those circumstances in the first place. If that is really the approach taken by the Tribunal it was plainly a misdirection. It would apply in any case where the employer has negligently injured an employee and would have the result, which as we have said above is not the law, that the employer in such circumstances could never fairly dismiss.”

His lordship was both in complete agreement with the EAT’s judgment and, at the same time, reluctant to add to it. Counsel for the employee was placed in an impossible position. He was constrained to argue that because of its behaviour and its responsibility for the employee’s condition, the bank, as a matter of law, was simply unable fairly to dismiss her. Any dismissal on those facts, he argued, would have been, and was, unfair.

That argument was plainly unsustainable. The EAT was plainly right, for the reasons it gave, to find that the tribunal had misdirected itself in law.
It was possible on the authorities for an employer who had negligently been responsible for personal injuries suffered by an employee in the course of her employment nonetheless subsequently to dismiss the same employee on the ground of capability without rendering the employer liable to a claim for unfair dismissal.

Given that the reason for the dismissal in the instant case—an indefinite incapability on the part of the appellant to do her job, and given that the manner in which the employee was dismissed was procedurally fair—counsel for the employee was quite unable to provide a rationale which distinguished the employee’s case from the case of the employee who had been dismissed following an industrial accident which had rendered that employee incapable of continuing in his employment.

The employee’s other principal difficulty stemmed from the facts as found by the tribunal. The employee had made it crystal clear that—no matter what anybody said or did—she was not coming back to work for the bank. It might have been different if the employee’s case had been that she was willing to try again but, plainly, she was not. Therefore, she had no answer to the question: “what was the bank to do in those circumstances?” save to fall back on the mantra that the bank’s behaviour had been so poor, and its responsibility for her condition so total that there were no circumstances in which it could, fairly, dismiss the employee. That proposition was untenable.
The appeal would therefore be dismissed.
 
Lord Justice Rix and Lord Justice Buxton agreed.