In the recent case of DB Schenker Rail (UK) Ltd v Doolan the EAT considered the extent of investigation by an employer into an employee’s medical condition in order to fairly dismiss them on ill health grounds. 

Mr Doolan was employed as an Operations Manager, a safety critical post involving various general management duties. Towards the end of 2004 Mr Doolan received treatment for “stress/depression” which he attributed to his workload.  He returned to work in June 2005 and in 2007 was appointed as Production Manager, a “key safety post” which involved a significantly higher level of responsibility than his previous role. In June 2007, Mr Doolan felt that his stress condition was returning and that his workload was “getting on top of him”. He was signed off sick with work induced stress in August 2007.

In January 2008 Mr Doolan’s GP certified him as fit to return to work. DB Schenker sought advice from its occupational health provider, BUPA, who also concluded that Mr Doolan was at the stage of being able to return to work on a phased return. DB Schenker considered that advice from an occupational psychologist was required and instructed an occupational psychologist to report.

The psychologist’s report stated that “I believe that the demands of this position require that he carries out his duties and responsibilities from a position of psychological and emotional robustness. I am uncertain about the reaily of being able to limit the general pressure inherent in this role in the long term, sufficiently enough to ensure Mr Doolan’s emotional wellbeing.” The psychologist concluded that “it was unlikely that Mr Doolan could convincingly declare that he would be able to return to work in a demanding environment without potentially succumbing to further periods of stress-related absence”.

On the basis of the psychologist’s report, Mr Doolan was informed at a meeting with his manager that DB Schenker did not believe it was possible for him to return to his role of Production Manager, given that it was safety critical, despite Mr Doolan saying that he considered it highly unlikely that he would go off sick with stress again. Mr Doolan was provided with a list of available alternative positions within the company, but he wanted to return to the role of Production Manager.

Mr Doolan met with his manager again in June 2008, at which he was dismissed on capability grounds. In coming to the decision to dismiss, DB Schenker attached greater weight to the report from the occupational psychologist than the report from BUPA, because it believed the psychologist had a more detailed knowledge of its business. The Claimant’s dismissal was upheld on appeal.

The Employment Tribunal found that Mr Doolan had been unfairly dismissed on the basis that DB Schenker did not have reasonable grounds for believing that Mr Doolan was incapable of working as a Production Manager.  The Tribunal concluded, amongst other things, that the psychologist’s report did not go “anywhere near indicating that the Claimant was not capable of returning to his duties of Production Manager” and that it contradicted the Claimant’s own GP and BUPA doctor, and so DB Schenker did not have reasonable grounds for its belief in Mr Doolan’s lack of capability. The Tribunal also considered that dismissal was outside the range of reasonable responses open to DB Schenker.

DB Schenker appealed this decision on the grounds that the Tribunal had substituted its own decision as to whether Mr Doolan should have been dismissed for that of his employer, both in terms of whether there were reasonable grounds for the DB Schenker’s belief in the reason for dismissal and whether the dismissal was within the range of reasonable responses.

The EAT restated that the applicable analysis of whether Mr Doolan’s dismissal for ill health had been fair was in accordance with the line of authority first set out in British Home Stores Limited v Burchell (1978) (and which applies equally to capability cases as misconduct cases, namely:

  1. whether the employer genuinely believed that the employee was incapable of doing the job that they were employed to do;
  2. whether that reason was reached after a reasonable investigation; and
  3. whether the employer had reasonable grounds for concluding as it did.

The EAT also made reference to East Lindsay District Council v Daubney (1977), which requires employers to “ascertain the true medical position” in order for a dismissal to be fair. The EAT held that this did not mean that a higher standard of investigation was required for medical cases than if the reason for dismissal was misconduct.  What was crucial was that the employer conducted a reasonable investigation into the medical picture.

The EAT went on to conclude:

  • The issue for the Tribunal was whether a reasonable management could find, from the material before them, Mr Dooley was not capable of returning to his role of production manager;
  • The decision to dismiss is a managerial one, not a medical one. While medical records may assist in making an informed decision on capability, the decision to allow an employee to return to work or dismiss them on the grounds of capability is a decision for the employer to make – it is not a decision to be dictated by the author of a report;
  • DB Schenker acted reasonably in concluding from the psychologist’s report that should Mr Doolan return to the role of Production Manager, he would be made ill again; and
  • The Tribunal substituted its own view for that of DB Schenker in considering whether or not there were reasonable grounds for DB Schenker’s belief in Mr Doolan’s incapability and whether his dismissal was within the range of reasonable responses.

The EAT therefore ordered the case to be re-heard by a fresh Tribunal. 

Whilst this case does not determine any new points of law, it is a useful reminder of the extent of an employer’s obligation to conduct a reasonable investigation into an employee’s medical picture, before the decision is taken to dismiss them.