Gavin Granger v Scottish Fire & Rescue Service

Where an employer dismisses an employee because ill health prevents performance of the role, an assessment entitling the employee to ill-health retirement is ordinarily an outcome of the capability process, rather than a separate substantial reason for dismissal. The reason must be assessed objectively and in light of the employer’s stated reason.

An Employment Tribunal errs if it treats procedural defects as immaterial solely because it has wrongly categorised a capability dismissal as one for some other substantial reason. The fairness assessment must then be reconsidered under Employment Rights Act 1996, section 98. A misclassification does not itself establish that dismissal was unfair where more than one outcome remains possible.

The claimant, an operational firefighter, had prolonged absence arising from musculoskeletal conditions and stress. His employer commenced a capability process and obtained an assessment by an Independent Qualified Medical Practitioner. The assessment concluded that he was permanently unfit for firefighting or any other regular employment with the respondent and qualified for higher-tier ill-health retirement.

Although the claimant no longer wished to retire, the respondent terminated his employment on grounds of incapability due to ill health. The Employment Tribunal dismissed his unfair-dismissal and disability-discrimination claims. It held that the dismissal was for some other substantial reason, namely the higher-tier ill-health-retirement assessment, rather than capability.

The appeal concerned whether that categorisation was legally correct, whether it affected the fairness assessment, and whether the conclusion on section 15 of the Equality Act 2010 should also be reconsidered.

1. Appeal allowed and remitted. The Employment Tribunal erred in characterising the dismissal as one for some other substantial reason. The dismissal letter expressly stated that employment was terminated on grounds of incapability due to ill health. The evidence also showed that the claimant’s physical and mental health prevented him from performing his operational role.

2. The dividing line between capability and some other substantial reason is fact-sensitive. However, on these facts, ill-health retirement at the higher tier was not itself the reason for dismissal. It was a possible outcome of the capability process. The Tribunal had wrongly conflated the medical assessment made during that process with the legal reason for dismissal.

3. The authorities relied on to support a different categorisation were distinguishable. They concerned dismissals in which policy or procedure was central despite a background of ill health or absence. Leonard also concerned exceptional and special contractual circumstances.

4. The error was material. The Tribunal had found that several features of the dismissal process would have been significant or unreasonable in a capability process, but had treated them as immaterial because it regarded the dismissal as ill-health retirement. It therefore addressed fairness from the wrong starting point. The EAT could not safely substitute a conclusion that dismissal was necessarily unfair, because that was not the only possible result on the unchallenged facts.

5. The case was remitted to the same Tribunal. It must reconsider, under section 98 of the Employment Rights Act 1996, whether dismissal for capability was fair in light of its existing findings about the procedure. The section 15 claim was also remitted because, on the Tribunal’s own approach, justification under the Equality Act 2010 and unfair-dismissal fairness were inextricably linked.

• Employment Appeal Tribunal: Allowed the appeal on the first and second grounds and remitted the unfair-dismissal and section 15 issues to the same Employment Tribunal.
• Employment Tribunal: Dismissed the claimant’s unfair-dismissal and disability-discrimination claims following hearings in February and March 2024.