Dismissal by reason of physical incapacity

Dismissal by reason of physical incapacity (capability).  

In a recent Tribunal case Mr. M. Veloso v. Jersey Dairy (October 2006 case number 2205077/06), the Tribunal set out its expectations in regard to a dismissal by reason relating to the capability of an employee, in determining whether that dismissal was fair or unfair.  

It is important to understand the background to the case and the actions taken by the parties in order to deal fairly with similar situations in the future.  

Background

Within that week the tour by the Doctor took place and the following day the employer wrote to the employee requesting a meeting five days later "to discuss your capability" and confirming that "following a full tour of your area of work and what was involved, [the Doctor] confirmed that you would be unable to carry out these duties in the long term". The employee was told that he may be accompanied at the meeting by a representative of his choice.  

It was confirmed to the Tribunal in evidence that this was the verbal conclusion of the Doctor passed on to the employer during the tour of the Dairy. His conclusions were not confirmed in writing until almost 6 weeks later. 

While the employer gave evidence to the Tribunal that the employee was advised that the meeting was about him keeping his job, the employee denied this. File notes of the conversation were not kept.  

At the meeting the Doctor’s (verbal) report and visit were discussed, as was the weight review and the possibility of undertaking other jobs in the factory. The employer concluded that, despite the employee’s protestations, the weights in all the other factory tasks were too heavy for him and that for health and safety reasons he would have to be dismissed as he was incapable of performing any job as a factory worker. He was paid in lieu of notice. No minutes were kept of this meeting by any of the parties.  

The employee gave evidence to the Tribunal that he had been amazed by the outcome of the meeting as both he and his representative thought it was to be purely to discuss the Doctor’s report and the weight’s report and what could be done for him. The employee appealed the decision to the Chairman of the organisation, effectively going straight to the final stage (2) of appeal, rather than stage 1. It was unclear whether the employee was aware that he had skipped stage 1.  

At the Appeal, a complaint was made on behalf of the employee that a second opinion was not offered from a doctor, other than from the Company Doctor who was a General Practitioner (G.P.) and it was requested that a risk assessment on the employee’s role be undertaken.  

The Tribunal concluded that there did not appear to have been much discussion of the points of view of the parties. The Appeal Chairman indicated he would bear these matters in mind when reading the file and he would also visit the factory to assess the employee’s job.  

The Appeal took place after the Company Doctor confirmed his conclusions in writing that ’lifting weights between 10 and 25 kgs. on a regular basis would do [him] harm and irreparable back damage’. It is not clear if this letter was shown to the employee or his advisers (as he had been sacked by the time it arrived), but the Appeal Chairman said in evidence that he recalled seeing it in his pack of papers prepared for him by the employer.  

Two weeks later, following a visit to the factory and a review of the various documents and events, the Appeal Chairman concluded that:

• "The Jersey Dairy had acted fairly in dismissing the employee on the grounds of his capability in the circumstances, and
  
• A risk assessment for operatives of the skim powder drying plant should be carried out."

Was the reason for the dismissal fair?  

In considering the case, the Tribunal noted the following.  

Capability (lack of) is one of the fair reasons for dismissal. It is defined in the Law, Articled 64 (2) and (3) as follows:

(a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

(3) In paragraph (2) (a) –

(a) "capability", in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality; and

(b)  "qualifications", in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.  

Where the employer has shown that there was a fair reason for dismissal, the question of  whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall  "depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and be determined in accordance with equity and the substantial merits of the case".  

In the case in question, the Tribunal had to consider whether the employer established the employee’s lack of capability as a reason for his dismissal, and the reasonableness of his dismissal on the ground of his lack of capability. 

The Tribunal accepted that that if the employee had continued in his job of factory operative at the condenser full-time he would have caused more injury to his back, and that Jersey Dairy as a responsible employer, once alerted to his injury, could not allow him to continue to do such work. The Tribunal accepts that the Jersey Dairy conducted an assessment of the various key items in its factory (as reflected in the weight’s report) and found that the employee was dismissed by reason of his apparent incapability of continuing to act as a Factory Operative within Jersey Dairy.

Was the dismissal reasonable?

It was also necessary for the Tribunal to consider whether the employer acted reasonably in treating his back injury as sufficient ground for dismissal. It was necessary, therefore, to look at the procedure that was followed in reaching that decision. 

The Tribunal noted that there have been no previous cases on ’capability dismissals’ under the Law in Jersey, so it was necessary to look at English precedent for guidance. There it is well established that in cases involving ill health or disability, there should be: 

• Consultation with the employee 
• Medical investigation, and
• Consideration of alternative employment . 

The Tribunal considered these to be perfectly reasonable points in a dismissal process involving the capability of an employee.  

The leading case in this area in England and Wales is East Lindsey District Council v Daubney 1977 ICR 566; where Mr Justice Phillips said:  

’Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in any one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, when brought to the notice of the employer’s medical advisers, will cause them to change their opinion. There are many possibilities. Only one thing is certain, and that is that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done.’  

The Tribunal accepted that the employer conducted back to work interviews, that it acted expediently in sending the employee to its Company Doctor and that an assessment of weights will be carried out and a meeting arranged to discuss the outcome.  

The Tribunal noted a number of matters at which it expressed concern. In brief these were:  

• That there was no record or any other document that the meeting with the employee referred to above could lead to his dismissal neither was there a record that the employee should seek the advice of JACS prior to his dismissal, although the employer contended that the employee had been advised to do so.  
• It was unfortunate that no minutes of the meeting at which the employee attended were kept.  
• It appeared there was little discussion about the medical report, weights assessment report or redeployment options. It appeared that the employee’s opinions were not sought, but the evidence indicated the meeting appeared to go straight to the conclusion of the employee’s dismissal.  
• There seemed to have been no consideration of suspension pending an appeal or for the employee to have time to consider the employer’s view of his continuing incapacity and his future role in the Dairy.  
• The employee was not advised at the meeting of his right to appeal the decision.  
• The employer did not write to the Doctor asking him to confirm his verbal report for two weeks and that the written report was dated more than 5 weeks after that – after the employee had been sacked. Importantly, this letter contained information that the employee could lift weights up to 10kgs and heavier weights on an irregular basis. This was seen as a crucial difference to the Doctor’s previous opinion of the employee being "incapable of doing his job."  
• The Tribunal, at its insistence, obtained a competency matrix of the jobs involved in the production plant and a short exercise was conducted at the hearing of the weights involved in each aspect of the production process. The Tribunal noted with concern that such an exercise does not seem to have been conducted by the employer. 
• A formal consideration of alternative employment in the Dairy for the employee should have been conducted: it is not necessary that it would have been successful. 

• The Tribunal was also concerned that the Appeal hearing took place 6 weeks after the employee was dismissed, and therefore after the fact. The Chairman did not use the opportunity to take a fresh look at the medical opinions (it was not clear to the Tribunal if the employee ever even received a copy of the Company Doctor’s letter of 1st May), or to draw up a competency matrix in order to consider the feasibility of lighter duties.  
• Further, the lack of manual handling training did not appear to figure in the Chairman’s report or the lack of risk assessments ordered by the Company when the employee’s injury first came to light.  
• The appeal was handled in a well intentioned manner but based solely on the information provided by the Company: no consideration was given to the process of the dismissal at this stage or any other.

In summary, the Tribunal was of the opinion that it would have been the act of a reasonable employer:

• To indicate clearly to the employee that the sanction of dismissal could follow from the meeting.
• To obtain a second medical opinion from a specialist in the area or clearly indicated in advance that it was not going to do so and that the employee should obtain his own report if he considers it necessary.
• To anticipate an appeal from its decision to dismiss and made plans to stay its hand over dismissal pending such appeal.
• To have endeavoured to move the employee to lighter duties or suspended him on normal pay during this period, given that the Tribunal accepts that the employer had reasonable concerns that the employee should not continue to lift weights of 5 kilos or more pending such appeal. Either action would have shown the employer to be exercising its duty of care to its employees. Instead the employer chose to dismiss immediately based on a GP’s examination of the employee and a verbal report by the same doctor which was found by the Tribunal to be at odds with his written report received by the employer some 5½ weeks after the dismissal.
• To have commissioned a formal competency matrix assessing the role of the employee in the Dairy against the limits of his physical capacity.
• To have ordered a risk assessment of back injury in the skim powder drying plant, on learning of the employee’s continuing injury to his back, and ensured that training and guidance in manual handling in the production plant was up to date.  

The Tribunal concluded that the employer chose to do none of these things at this point. Instead it decided to dismiss the employee shortly after receiving the Company Doctor’s verbal report and with little evidence of analysis of the employee’s situation and consideration of the alternatives to his dismissal. Finally there was also little evidence of consultation with the employee about the employer’s position in this matter. 

For these reasons the Tribunal was convinced, on the basis of the evidence heard and presented to it, that the employee’s dismissal on the grounds of his incapacity was unfair because the employer failed to act reasonably in its process of dismissing this employee.  

These notes are  intended for guidance only. It is not a foregone conclusion that the Tribunal would require as robust an approach to be taken by a much smaller organisation as it would need to take account of the size and administrative resources of that undertaking.

Whatever the circumstances, JACS recommends that all employers facing decisions about the capability (die to ill health) of an employee ensure the following is done:  

• Consult with the employee fully and if continued employment is in jeopardy, make certain that the employee is aware of this.
• Require appropriate medical investigation(s) to be carried out, using the services of a specialist if necessary.
• Consider alternative employment, assessing any other available jobs against the employee’s competencies.
• If dismissal results, ensure the employee is aware of the right to appeal.
• Document all discussions carefully and retain these as a record of events.

jacs October 2006