A question that we are quite often asked is what additional
steps, if any, ought an employer to take before dismissing an
employee who has been injured as a result of an accident at work
for which the employer was, or at least may have been, responsible?
The EAT decision in The Royal Bank of Scotland plc v McAdie, 5
October 2006, provides some useful guidance on this issue.
Mrs McAdie had been an employee of the Bank since 1983. During
2003, she was transferred to a particular branch on a temporary
basis. She was not happy about the move and complained to one of
the Bank's managers. The Employment Tribunal found that the manager
dealt with Mrs McAdie's complaint in an inappropriately
authoritarian and unsympathetic manner. Thereafter, Mrs McAdie went
off sick with work-related stress. Whilst off sick, she pursued a
grievance, both in respect of the transfer and the manager's
handling of her subsequent complaint. Unfortunately, the grievance
was poorly dealt with by the Bank and, in particular, the basis of
the grievance was not properly investigated. All of this did no
good to Mrs McAdie's health and she continued to be absent from
work. Indeed, she never returned to work at all and was dismissed
by the Bank in December 2004 on the grounds of ill-health.
The Employment Tribunal found that the Bank's handling of the
grievance was the cause of Mrs McAdie's continued ill-health. The
Tribunal then went on to consider the significance of that in the
context of Mrs McAdie's claim for unfair dismissal. It concluded
that "no reasonable employer would not have dismissed in these
circumstances because no reasonable employer would have found
themselves in these circumstances". In effect, the Tribunal
was saying that, having messed up the grievance by failing to
properly investigate it, the Bank was left in the position of never
being unable to fairly dismiss Mrs McAdie on the grounds of her
ill-health. Not surprisingly, the Bank appealed to the EAT.
The EAT firstly considered whether, when considering the
reasonableness of her dismissal, the Tribunal was entitled to take
into account its finding that the Bank was responsible for Mrs
McAdie's illness. It held that, as a matter of principle, that was
a relevant factor. The EAT also commented that, where an employer
has some sort of responsibility for an employee's incapacity, the
employer may require to "go the extra mile" before
dismissing on the grounds of that incapacity. It provided two
examples of additional steps that the employer may require to take,
being increasing the efforts to find alternative employment and
putting up with a longer period of sickness absence.
The EAT did however disagree with the Tribunal's approach
thereafter. It decided that the Tribunal had failed to apply the
statutory test of reasonableness. That test requires consideration
of whether a dismissal was reasonable "in the
circumstances". The EAT held that "the circumstances"
in question are those existing as at the date upon which the
decision to dismiss is taken. Rather than having regard to all of
"the circumstances" in which the Bank found itself at that
time, the Tribunal had concentrated on whether the Bank should have
allowed itself to get into those circumstances in the first place.
That approach was erroneous and the EAT allowed the Bank's
appeal.
Although this case concerned an employee who suffered
work-related stress, the EAT's judgement makes clear that the same
principles would apply to any employee negligently injured at work.
When considering the dismissal of such an employee on the grounds
of incapacity, employers should therefore heed the warning that it
may be necessary to "go the extra mile" to ensure the
fairness of the dismissal. Ultimately, there is however no absolute
bar against such a dismissal.