Ill-health dismissal

Case 3: The facts

After a fall, bus driver Elaine Weir went on long-term sick leave and was eventually told that she would be dismissed unless she could give a reasonable return-to-work date.

In a subsequent phone call, Weir told the personnel manager that she was having an operation two days later; she would be able to return to work in about three months but would need physiotherapy for another six to nine months after that.

Thinking that Weir meant she could not return for six to nine months, the manager dismissed her. Weir did not correct the error when it was confirmed in writing, nor did she appeal the decision.

A tribunal held that Weir was unfairly dismissed, as her employer could have waited until after the operation – just two days away – to find out the outcome.

The ruling

The Employment Appeal Tribunal (EAT) held that the tribunal had wrongly substituted its own reaction for that of the reasonable employer by which the fairness of a dismissal is judged: the employer had a genuine and reasonable understanding that Weir would not be fit for work for another six to nine months.

In an incapacity case, the EAT said, an employer must consult the employee and find out about his/her medical position, but must not set itself up as a medical expert. The case was remitted to a new tribunal.

Arriva Scotland v Weir UKEATS/0068/05