Chelsea Brooke-Ward successfully represents Claimant in unfair ill health capability dismissal
Park Square BarristersMark Swailes v Muller UK & Ireland Group LLP
The Claimant was employed as an HGV Driver. Unfortunately, he had an accident and seriously injured his shoulder requiring an operation. Given the Covid Pandemic his physiotherapy and consultant appointments were scarce and by telephone. The Respondents had referred the Claimant to Occupational Health on numerous occasions and had held a number of welfare meetings with the claimant over a period of 6 months in which the Clamant continually asked for a return to amended duties. The final Occupational Health Report relied on by the Respondents envisaged that the Claimant may not be fit for his normal role for a further 6 months but recorded that there was no medical diagnosis. The Occupational Health Advisor had suggested throughout her reports that that the Claimant was willing and able to do alternative roles provided they were safe. Without obtaining, or attempting to obtain a medical opinion on prognosis, or considering alternative employment, the Respondents dismissed the Claimant on grounds of ill health capability.
The Claimant brought proceedings for unfair dismissal. The Claimant’s claim succeeded, and the judge held:
“It is clear from the evidence that the respondents never considered the possibility of waiting until the claimant had been seen by his surgeon in October, when the prognosis might have been clearer, nor did they consider asking the claimant to try and obtain an earlier appointment, nor did they consider asking the claimant to give consent for the respondent to contact the consultant directly. In light of a clear indication from the claimant that he could not provide a prognosis without seeing his surgeon I find that it was not within the band of reasonable responses not to even consider whether or not to wait until the claimant had seen his surgeon in October or to explore the possibility of getting an opinion from the treating consultant at an earlier date, and instead to simply rely on the occupational health report of someone who had not seen the claimant in person.
The respondent simply did not address their mind to this. I find that this was not an investigation which a reasonable employer could have adopted. Accordingly, I find that it was outside the band of reasonable responses for the respondent not to wait until it had at least explored this possibility before dismissing the claimant. This renders the dismissal unfair.
In terms of suitable alternative employment, I accept that reasonable attempts were made to find suitable alternative employment at the Leeds Depot. I find that it was outside the band of reasonable act so fail to at least explore and raise with the claimant the possibility of finding alternative work, perhaps on a temporary basis at the Manchester Depot. It is clear from the letters sent out after the meetings that this is something that the respondent would normally explore because they refer to employment in a different location and it is unclear why the respondent made an assumption that the claimant would not be interested in this without raising it with the claimant. This also renders the dismissal unfair.”
Based on the above, and in line with the case law namely, East Lindsey District Council v G E Daubney and BS v Dundee City Council, it is important for Respondents to apply their minds and to discovering the true medical position before reaching a decision to dismiss on grounds of ill health. Further, it is imperative that Respondents consider all options of alternative work including where applicable other sites the Respondent may have.
Chelsea Brooke-Ward has a busy employment practice and is regularly instructed on behalf of both Claimants and Respondents. She has become a main source of referral to advise on the merits of successful claims, on behalf of insurance companies.
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