Dismissal for capability

Case 2: The facts

Due to a physical injury Mr Brooks was unable to lift heavy loads, a requirement of his job as an ambulance worker. He asked to transfer to other work but in the view of his employer, even if the job identified had been available, it still would have involved lifting. He was offered alternative work but rejected it and was dismissed. At an appeal against his dismissal he asked for another medical investigation but the appeal panel viewed this as unnecessary. After the appeal had been heard new evidence suggested an 80% chance of a full recovery. Taking this into account, a tribunal found the dismissal unfair. The Trust appealed.

The ruling

The EAT ruled in the Trust's favour. It held that the tribunal has to judge the situation as it is on the date of the dismissal. The employer does have an obligation to monitor that decision to take account of any proper change in the circumstances up to the date of the appeal. However, this does not mean that the employer has to reinvestigate the matter unless the employee presents new material at the appeal.

* Two Shires Ambulance NHS Trust v Brooks EAT/0330/02