Dundee City Council v Sharp

In a long-term ill-health dismissal, fairness is not determined by whether the employer omitted a possible further enquiry or followed a particular procedure. The tribunal must consider whether the employer consulted the employee, carried out a reasonable investigation and reached a reasonable view on whether it could reasonably be expected to wait longer before dismissing.

There is no absolute rule requiring every potentially relevant fact to be obtained. A procedural failing does not automatically make dismissal unfair, and fairness in ill-health cases is not subject to a higher standard than in misconduct cases. Length of service is irrelevant when assessing the reasonableness of the investigation, although it may be relevant to the overall decision whether dismissal was reasonable.

The claimant, a joiner employed by Dundee City Council for 35 years, was dismissed for capability after more than a year’s absence caused by depression and anxiety. Occupational health reports repeatedly found him unfit for work. A consultant occupational health physician considered that he might return within one to three months, but the claimant remained unfit at the dismissal and appeal stages.

The Employment Tribunal found the dismissal unfair, principally because the Council had not made further enquiries about the claimant’s medical position and had failed to give sufficient weight to his length of service. The Council appealed, arguing that the Tribunal had imposed too high a standard of investigation and treated length of service as relevant to the investigation. The central issue was whether the Council could reasonably have been expected to wait longer before dismissing.

1. Appeal upheld. The Tribunal’s judgment was set aside and the case was remitted to a freshly constituted Tribunal.
2. Under sections 98(2) and 98(4) of the Employment Rights Act 1996, capability is a potentially fair reason, but the Tribunal must decide whether dismissal was reasonable in all the circumstances. In long-term ill-health cases, the practical question is whether the employer could reasonably be expected to wait longer and, if so, how much longer. The employer must consult the employee, carry out a reasonable investigation and reach a reasonable view on the prospects of return.
3. The authorities did not require a higher standard of enquiry or any particular procedure. The guidance in East Lindsey District Council v Daubney required sensible consultation and steps to discover the true medical position, but did not impose detailed procedural requirements. A Tribunal must avoid treating every possible further enquiry as determinative of fairness.
4. The Tribunal erred by treating procedural fairness as a separate and especially important requirement in ill-health cases. It also erred in holding that dismissal was unfair because the Council had not obtained all relevant facts. Reasonable employers may differ about what information is relevant, and an employer may draw reasonable inferences from the employee’s own account of his condition.
5. Length of service was irrelevant to the reasonableness of the investigation. An employee’s length of service neither requires a more detailed investigation nor permits a more casual one. Mr Thomson added that length of service and conduct and capability during employment could nevertheless be relevant to the overall decision whether to dismiss.
6. The fresh Tribunal was directed, on the facts already found and after further submissions, to decide whether the Council could reasonably have been expected to wait longer. If not, the dismissal was fair; if so, it was unfair and remedy was to be determined. A fresh Tribunal was required in light of Article 6 ECHR concerns arising from the original Tribunal’s expressed sympathy.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s judgment registered on 13 December 2010. The appeal was upheld, the judgment was set aside, and the matter was remitted for reconsideration.