Incapacity dismissal

Q: One of our members has been dismissed on grounds of incapability after being on long-term sick leave, but his absence was caused by his employer in the first place. Is the dismissal unfair?

A: Capability is one of the “fair reasons” for which an employer is entitled to dismiss an employee under the unfair dismissal provisions of the Employment Rights Act. The law does not deal any differently with lack of capability caused by work-related injuries, so there is nothing to stop an employer dismissing someone on these grounds even if the illness was work-related — although this is a factor that a tribunal should take into account when deciding whether the dismissal was reasonable in the circumstances.

In the recent case of McAdie v Royal Bank of Scotland [2007] EWCA Civ 806, the Court of Appeal held that the dismissal of a worker who had been off sick with work-related stress following her employer’s failure to deal with her grievances (including allegations of bullying by her line manager) was fair.

An employer should “go the extra mile” when looking for alternatives to dismissal (such as finding alternative employment), the court said, but it is still entitled to dismiss the employee where there is no alternative.

Employees who are injured as a result of their employers’ negligence (either in an accident or through bullying that causes psychiatric injury) can seek compensation by making a personal injury claim.