NHS Fife Health Board v Stockman

In a capability dismissal arising from an interim suspension of professional registration, fairness under section 98(4) requires the employer to consider the employee’s individual circumstances. Where its procedure bypasses ordinary investigatory and supportive stages, the employer must obtain and consider available, up-to-date information about treatment, progress and the likely duration of the suspension before dismissing.

The Employment Tribunal must apply the range of reasonable responses test without substituting its own view. It may receive relevant expert evidence about the practice of reasonable employers in the same profession, but not opinion evidence expressing a value judgment on the employer’s conduct.

The claimant, a pathologist, was suspended from the medical register on an interim basis after an alcohol-related driving conviction. He was undertaking a rehabilitation programme and was unfit for work during it. The Health Board used its capability policy, proceeded directly to stage 3, and dismissed him when no permanent redeployment was found.

The Employment Tribunal held that capability was a potentially fair reason but that the dismissal was unfair. It found that the Board had followed its policy mechanistically, without obtaining current medical information or properly considering the temporary nature of the suspension. The Board appealed, alleging that the Tribunal had substituted its own view and wrongly admitted doctors’ evidence.

1. Appeal dismissed. The Employment Tribunal correctly directed itself and applied the range of reasonable responses test under section 98(4) of the Employment Rights Act 1996. Although parts of its reasoning came close to substitution, its decision was based on whether a reasonable employer would have acted on the information available.
2. The Board was entitled to use the capability policy then in force. Its use did not itself make the dismissal unlawful. The relevant question remained whether dismissal under that policy was reasonable in all the circumstances.
3. The policy required an immediate move to stage 3 following loss of registration. The claimant therefore lost the investigation and support normally available at stages 1 and 2. It was consequently essential to consider all relevant individual circumstances before dismissal, including current information about treatment and progress and the likely duration of the interim suspension.
4. The Tribunal was entitled to find that the Board had made dismissal effectively inevitable by adhering rigidly to its procedure without considering that vital information. That finding supported its conclusion that the Board had acted unfairly; it did not impose a rule that the post had to be kept open or that dismissal could never be fair.
5. The evidence of the two doctors was admissible insofar as it assisted the Tribunal to assess what a reasonable employer in the same profession would do. The Tribunal could take account of their factual experience of comparable treatment of doctors, but could not accept their value judgment that the Board was a law unto itself.

No error of law was established and the appeal was refused.

• Employment Appeal Tribunal: dismissed the Health Board’s appeal and upheld the finding of unfair dismissal.
• Employment Tribunal, Edinburgh: decision sent to the parties on 27 June 2013. It held that the claimant had been unfairly dismissed and directed a remedies hearing.