It is well established that capability is one of the six potentially fair reasons for dismissing an employee and that one of the factors relevant to whether an employee is capable of carrying out their duties is their health. Issues often arise where employees are on long term sick leave and their employer is concerned that they may not be capable of returning to their role in the foreseeable future. Under the new 'fit note' regime a GP will only ever certify that an individual 'may be fit' to return to work meaning that there will always be a duty on the employer to carry out its own assessment of the risks.

Previous case law (specifically East Lindsay District Council v Daubney) has emphasised that when considering whether to dismiss an employee on capability grounds as a result of their ill-health, it is important that the employer informs itself of the 'true medical position'. The recent case of D B Schenker Rail (UK) Ltd v Mr J Doolan has now given guidance on the standard of enquiry that is required of the employer.

Mr Doolan had two separate periods of stress related absence from his employment. At the time of the second period of absence he was employed as a production manager which was described as being a 'key safety post'. After almost six months of absence he indicated that he wanted to return to work and his GP certified him as being fit to do so. The company requested that he attend an occupational health doctor who also reported that he felt it was appropriate to allow Mr Doolan to return to work.  The company then requested that Mr Doolan attend an occupational psychiatrist, even though the doctor had not recommended that an additional medical report be obtained, on the basis that his absence had been stress-related. The psychiatrist's report suggested that it was unlikely that the company could limit the general pressure inherent in Mr Doolan's role sufficiently to ensure his wellbeing. As a result of this report, the company terminated Mr Doolan's contract on capability grounds after he refused the alternative roles that were offered to him.

The employment tribunal initially held that Mr Doolan's dismissal was unfair.  However, this decision was overturned by the EAT which said that the requirement for the employer to inform itself of the true medical position did not extend any further than the requirement to conduct a reasonable investigation, which is the relevant standard when dismissing on the grounds of misconduct. The EAT commented that ultimately, the decision to dismiss is a managerial one and not a medical one, meaning that the company in this case was entitled to rely upon the psychiatrist's report even though it conflicted with the reports of the GP and the occupational health doctor.

Employers can feel comforted by the fact that they will not be held to a higher standard of investigation in circumstances involving a capability dismissal on medical grounds than they would be when considering a misconduct dismissal. Ultimately, it will always be necessary to conduct a reasonable investigation and any decision to dismiss must be fair in all the circumstances.  It is also advisable in certain circumstances to obtain a report from the company's chosen medical practitioner to enable an informed decision to be made. However, based on this case, it is difficult to envisage circumstances where a tribunal would find that an employer had acted unreasonably by following the advice in a medical practitioner's report, even if there are conflicting reports in existence. It is worth noting that care should always be taken when dealing with employees on long term sick leave as there may be disability issues and potential liability for discrimination if these issues are not considered and explored with the employee prior to termination.