Gavin Granger v Scottish Fire & Rescue Service

The Employment Appeal Tribunal allowed the claimant's appeal and remitted the matter to the Employment Tribunal to reconsider whether the dismissal was fair, because the ET erred in law by treating the employer's reliance on an Independent Qualified Medical Practitioner (IQMP) ill‑health retirement assessment as a distinct "some other substantial reason" rather than as an outcome of a capability process under s.98 ERA. The EAT held that ill health retirement is a possible outcome of a capability process and that the ET had conflated process (the steps taken in a capability assessment) with outcome (the IQMP decision confirming entitlement to ill‑health retirement at the higher tier).

The EAT found material findings by the ET that certain procedural failures would have been significant in a capability dismissal (for example, a failure by the decision‑maker to review occupational health records and a pre‑determined decision) but then proceeded to treat the dismissal as fair on the basis that the IQMP decision provided a separate substantial reason. The EAT concluded that, because the ET reached the fairness question from the wrong starting point, the fairness of a dismissal properly characterised as capability must be reconsidered by the ET in light of its factual findings and applicable law (s.98 ERA, and s.15 Equality Act 2010 where relevant).

Background and procedural posture

The claimant, an operational firefighter, suffered musculoskeletal problems and stress and accrued extensive absence. The respondent managed his absences under its Capability Process while he carried out temporary alternative duties. He was referred to an Independent Qualified Medical Practitioner (IQMP) as part of the ill‑health retirement procedure and the IQMP concluded he was permanently unfit for his role and qualified for ill‑health retirement at the higher tier. The respondent terminated his employment on the grounds described in the dismissal letter as "incapability due to ill health."

The Employment Tribunal dismissed the claimant's claims for unfair dismissal and disability discrimination contrary to section 15 of the Equality Act 2010. The claimant appealed to the Employment Appeal Tribunal on questions of law.

Nature of the claim / relief sought

• The claimant sought a finding that his dismissal was unfair under section 98 of the Employment Rights Act 1996 and that he had been discriminated against under section 15 Equality Act 2010.

Issues framed by the EAT

• Whether the ET erred in law by treating the dismissal as for "some other substantial reason" (the IQMP ill‑health retirement finding) rather than as a capability dismissal under s.98 ERA;
• Whether the ET impermissibly conflated the outcome of the IQMP ill‑health retirement assessment with the procedural requirements of a capability dismissal (including consultation and consideration of occupational health records); and
• Whether, standing the ET’s factual findings about procedural shortcomings, the decision to dismiss could nevertheless be upheld as fair and whether the section 15 claim remained justified.

Reasoning and conclusion

The EAT reviewed the ET's findings of fact (unchallenged on appeal) and the law (notably s.98 ERA and s.15 EqA). It concluded that ill‑health retirement is an outcome that may arise within a capability process and therefore cannot be treated as a distinct "some other substantial reason" in circumstances such as this. The ET had found a number of procedural shortcomings that it described as significant or unreasonable for a capability dismissal but nonetheless upheld the dismissal because the IQMP assessment had produced an entitlement to higher‑tier ill‑health retirement. The EAT held that the ET thereby proceeded from the wrong legal starting point and erred in law.

The EAT did not itself substitute a different fairness conclusion. Instead it remitted the case to the same Employment Tribunal to determine, applying the correct legal characterisation (that the dismissal was on grounds of capability), whether the dismissal was fair under s.98 ERA and, if necessary, to revisit the section 15 EqA justification issue in light of that re‑assessment.

Appeal allowed. The EAT held that the Employment Tribunal erred in law by treating the IQMP ill‑health retirement assessment as a separate "some other substantial reason" rather than as an outcome of the capability process; the ET must reassess fairness starting from the proper legal characterisation (capability) because it had found procedural shortcomings that would be material to a capability dismissal.

Appeal from the Employment Tribunal (hearing 27 February–7 March 2024) which dismissed the claimant's unfair dismissal and section 15 Equality Act 2010 claims. The Employment Appeal Tribunal allowed the appeal and remitted the matter to the same Employment Tribunal for reconsideration. Neutral citation: [2025] EAT 90.