The EAT decision in Perth & Kinross Council v Gauld illustrates the care that an employer may need to take when approaching medical evidence provided by an employee. It was unreasonable for the employer to reject the evidence of the employee's expert without obtaining its own medical advice.
The employee returned to work after a cancer-related absence, but following criticism of a piece of work she had produced had a further period of sick leave on grounds of work related stress. During her absence she complained that her manager had been unsupportive of her and undermined her. Although she later withdrew those complaints, the employer nonetheless conducted an investigation into the allegations, which concluded that there was no evidence that the manager had behaved inappropriately.
The employer then instituted disciplinary proceedings for gross misconduct against the employee on the basis that she had made "unfounded and inappropriate" allegations against the manager. Although the employee produced evidence from a clinical psychologist indicating that she was suffering from post-traumatic stress, which could lead to over-sensitivity about perceived criticism, this evidence was discounted by the manager conducting the disciplinary hearing. The employee was dismissed for gross misconduct. On appeal the sanction was reduced to dismissal on notice, but the panel again rejected specialist evidence about the impact of post-traumatic stress disorder on the employee.
The employment tribunal, upheld by the EAT, found that the decision to dismiss was unfair. The medical evidence presented by the employee had been rejected without a cogent reason for doing so. If it was concerned about the quality of the evidence presented by the employee, the employer should have obtained medical evidence of its own. Its failure to do so meant that it did not have reasonable grounds for believing that the employee was guilty of misconduct and the dismissal was unfair.