Friday, 10 June 2011

The Relevance of 'Burchill' to Capability

In the Edinburgh Appeal Tribunal an appeal against a finding of unfair dismissal was upheld in the case of D B Schenker Rail (UK) Ltd v Doolan Appeal No. UKEATS/0053/09/BI 13 April 2011

The ET had no basis for finding that the employers were not entitled to conclude, on expert evidence that the Claimant was fit to work - they had substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.

The dismissed man was a production manager suffering from stress and depression - a referral to an occupational psychologist was made - eventually he was dismissed on capability grounds.

The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175). A question arose as to whether it was a genuine reason and whether certain expert evidence should have been relied upon by the Respondents.

Para 33 sums up the correct approach when there is a question as to the sufficiency of the reason for dismissal:

'Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.

The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.'


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