CFS Management Services Ltd v Thomas

In an ill-health dismissal, the statutory question under section 98(4) is whether the employer acted within the range of reasonable responses. The tribunal must not substitute its own view of what would have been reasonable.

A tribunal’s reasons must, however, be read as a whole. Having correctly directed itself, it does not necessarily misapply the law merely by later describing conduct as unreasonable.

It was open to a tribunal to find dismissal outside the range where the employer dismissed for ill health, but relied on occupational-health advice that the employee was not sufficiently unfit to qualify for an income-protection scheme under which the employer accepted that an unfit employee would have remained employed.

The employee, a mortgage adviser, was dismissed for capability on grounds of ill health after lengthy absences. He had medical conditions including a pituitary tumour, headaches, fatigue and memory difficulties.

While employed, he could receive payments under the Britannia Income Protection Scheme if medically unable to work. The employer accepted that, if he met that condition, it would retain rather than dismiss him. It nevertheless dismissed him for continuing ill health while relying on occupational-health advice that he was fit for work and did not qualify for the scheme.

The Bristol Employment Tribunal upheld his unfair-dismissal claim. The employer appealed, contending that the tribunal had substituted its own assessment of reasonableness for the statutory test.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself that, in an ill-health capability dismissal, the question is whether dismissal fell outside the range open to a reasonable employer under section 98(4) of the Employment Rights Act 1996. It had not substituted its own view merely by using the word unreasonable.

2. The tribunal’s reasons had to be read as a whole and in their unusual factual context. The employer accepted the employee’s genuine assertion that he was unfit and had no prognosis for return, and dismissed him for that reason. At the same time, it relied on occupational-health advice that he was not medically unable to work for the income-protection scheme, although it accepted that scheme eligibility would have prevented an ill-health dismissal.

3. It was therefore open to the tribunal to find that the employer acted outside the range of reasonable responses. The employer sought to rely on the same medical position in inconsistent ways: to justify dismissal for incapacity, while denying the unfitness which would have entitled the employee to continued employment and scheme payments.

4. The tribunal’s criticisms of the occupational-health material were capable of supporting that conclusion. The adviser had not seen the employee, had not obtained a recent independent assessment, had not consulted the general practitioner or neurologist, and had not been given sufficient current information about worsening symptoms and absence.

5. The tribunal had not created a new legal rule by observing that greater care may be required where an occupational-health adviser has not seen the employee. That was a permissible common-sense consideration in deciding whether reliance on the report was within the range of reasonable responses.

• Employment Appeal Tribunal: The employer’s appeal was dismissed; the finding of unfair dismissal was upheld.
• Employment Tribunal (Bristol): By reasons sent on 28 June 2011, the tribunal upheld the unfair-dismissal complaint and rejected the direct disability-discrimination complaint. The latter decision was not appealed.