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 EWCA Civ 806, Court of Appeal - Jane McNeill QC
The Employment Appeal Tribunal had been right to hold that an employer was not precluded from fairly dismissing an employee on the grounds of ill health by reason of the fact that its conduct was at least partly responsible for that employee's inability to work.
The appellant employee (M) appealed against a decision of the Employment Appeal Tribunal that the respondent bank (B) had not unfairly dismissed her. In July 2003, M, who had worked for B for a number of years, had complained to a manager (G) about her temporary transfer to another branch. M was called to a meeting to discuss the transfer and was later sent a note of the meeting. M was dissatisfied with the note and took the view that there were a number of omissions in respect of matters discussed at the meeting. A telephone conversation then took place in which M alleged that G's manner was intimidating and bullying. M was signed off sick from work diagnosed with a severe adjustment disorder secondary to workplace issues, and instigated B's internal grievance procedure. B rejected M's complaints, found there was no inappropriate behaviour and offered M a return to work in a different role or location. M stated that she was unable to consider any form of return to work and was subsequently dismissed in December 2004 on the grounds of ill health. The employment tribunal held that M had been unfairly dismissed as no reasonable employer would have dismissed M in those circumstances. The tribunal found that no reasonable employer would have found themselves in those circumstances as a reasonable employer would have investigated the matter properly at an early stage. The EAT allowed B's appeal on the basis that the tribunal had misdirected itself in law as there was no alternative to dismissal in M's case.
HELD: (1) The EAT's decision that the tribunal had misdirected itself in law was right for the reasons it gave. Given that the reason for dismissal was M's indefinite incapability to do her job, and as the manner in which she was dismissed was procedurally fair, there was nothing to distinguish the case from that of an employee who had been dismissed following an industrial accident that rendered him incapable of continuing in his employment. (2) The EAT had not misdirected itself on the authorities it relied on and its analysis was a wholly accurate summary of the effect of the authorities and should be followed by both employment tribunals and EATs in the future, London Fire and Civil Defence Authority v Betty (1994) IRLR 384, Edwards v Governors of Hanson School and Frewin v Consignia Plc considered. On the facts, B's culpability in bringing about M's incapability was plainly not a basis upon which it could be said that her dismissal was unfair.