The EAT has held that a dismissal on the grounds of capability where the employee had been off work on long term health grounds was unfair as the employer had failed to give due consideration to the possibility of ill health retirement before dismissal.

In this case the employer had an enhanced pension scheme in place which allowed employees to receive an ill health pension if they were forced to retire on the grounds of permanent incapacity. The employer acted unreasonably by dismissing the claimant without waiting for medical evidence as to whether the claimant was permanently incapacitated and by unreasonably imposing an ultimatum upon the claimant to choose between dismissal or the loss of any right to claim ill health pension in the future. For these reasons the EAT upheld the Tribunal’s decision that the dismissal was unfair.

 First West Yorkshire T/A First Leeds v Haigh