Capability Dismissals

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (Lady Smith) has handed down its decision in D B Schenker Rail (UK) Ltd v Doolan, which is authority for the proposition that in a capability dismissal the standard of enquiry required of an employer is from the familiar Burchell test, and the requirement to ascertain the "true medical position" (East Lindsay District Council v Daubney [1977] ICR 566) does not require a higher standard of evidence than in a conduct case. The decision to dismiss is a managerial one, not a medical one, and an employer should make its own assessment of the risk to an employee's health from returning to work.

The Claimant was a manager at a rail freight company, dismissed after a period of stress-related absence; he then took his pension early. The EAT overturned the Tribunal's decision that the dismissal was unfair and remitted it for re-hearing.

The EAT also observed that a re-instatement order to restore the Claimant to the Respondent's pension scheme should only require an employer to do what was within its power, and held that the uncertain terms of the order made amounted to an error of law.