Elmbridge Housing Trust v O'Donoghue

In an ill-health capability dismissal, the central question is whether, in all the circumstances, the employer can reasonably be expected to wait longer and, if so, for how long. The tribunal must assess the dismissal within the range of reasonable responses open to an employer. Relevant matters include available medical information, the employee’s cooperation, the employer’s efforts to obtain information, the prospect of a return to work and the needs of the service. An employee’s failure to provide usable consent for occupational-health disclosure may justify a decision on the limited evidence available after reasonable extensions. Appellate intervention is confined to error of law, including a truly perverse conclusion. Tribunal reasons must be read in context. A capability dismissal should not be recharacterised as conduct merely because non-cooperation forms part of the facts.

A housing manager was dismissed for incapability on 28 June 2001 after a lengthy sickness absence. The employer repeatedly sought consent to obtain occupational-health information, but the employee returned a form with the disclosure provision deleted and later supplied correspondence which the employer considered insufficiently clear and formally incomplete.

The Employment Tribunal found that the dismissal was for capability, that the employee had failed to cooperate with a reasonable request for medical information, and that the dismissal was fair. The Employment Appeal Tribunal allowed the employee’s appeal, treated the matter as conduct, found that fair disciplinary procedures had not been followed, and substituted a finding of unfair dismissal. The employer appealed. The central issue was whether the Employment Tribunal had erred in law or reached a perverse conclusion.

Appeal allowed unanimously. The Court of Appeal restored the Employment Tribunal’s decision dismissing the unfair-dismissal claim.

1. The applicable test in an ill-health capability dismissal was whether, in all the circumstances, the employer could be expected to wait longer and, if so, for how much longer: Spencer v Paragon Wallpapers Ltd [1976] IRLR 373. The ultimate question was whether the decision fell within the range of reasonable responses open to the employer.
2. An appeal from an Employment Tribunal lay only on an error of law. The Employment Tribunal’s reasons had to be read generously and in context. An infelicitous phrase, such as the reference to a total lack of communication, did not justify interference where the reasons read as a whole showed that the Tribunal had considered the correspondence and meant a lack of direct communication. The authorities included Meek v City of Birmingham District Council [1987] IRLR 250 and UCATT v Brain [1981] IRLR 225.
3. The Employment Tribunal had adequately addressed the case actually presented. Its conclusion that the employer could act on the limited medical information available was not perverse. The employer had made repeated requests, offered assistance and possible adjustments, granted numerous extensions, and was entitled to set a limit to the process. The employee had never signed a document capable of obtaining the required medical advice.
4. The employee’s concern that disclosure should be confined to a suitable designated officer did not alter the result. The employer had identified such an officer and had sought only a properly completed document. The employee could have clarified or amended the revised form but instead insisted that her existing correspondence was sufficient.
5. The Employment Appeal Tribunal wrongly recharacterised the dismissal as one for conduct. The agreed reason before the Employment Tribunal was capability. The alleged failure to cooperate with medical investigations was part of the capability assessment and did not require the disciplinary procedures applicable to misconduct. The delay in arranging a voluntary internal appeal caused no unfairness, particularly after the employee chose an earlier Employment Tribunal hearing. The respondent was ordered to pay costs assessed at £10,000.

1. Court of Appeal (Civil Division): allowed the employer’s appeal and restored the Employment Tribunal’s decision. Costs were assessed at £10,000.
2. Employment Appeal Tribunal: by a decision issued on 29 October 2003, allowed the employee’s appeal, quashed the Employment Tribunal’s decision, substituted a finding of unfair dismissal, and remitted the case for a remedies hearing.
3. Employment Tribunal: decision first issued on 12 June 2002, with extended reasons on 15 July 2002; found the dismissal fair and dismissed the claim.