Coronavirus: Employer’s resource centre — live guidance available here


EAT approaches dismissal on capability grounds in the same way as conduct dismissal cases

BY Richard Woods
Employment Law & HR
BG Purple

In DB Schenker Rail (UK) Ltd v Doolan the EAT confirmed that the decision to dismiss in capability cases is essentially one for management and not for the employee’s doctor.

A production manager who had been off sick with stress was certified by his GP as being fit to return to work.  However, given the safety critical nature of his role his employer sought further advice from an occupational health physician and an occupational psychologist. These reports cast doubt on the employee’s ability to carry out such a demanding role without a danger that he would fall ill again in the future.  On the basis of this report, the employer decided that the employee was unable to return to his previous role and dismissed him on capability grounds. When the employee raised a claim for unfair dismissal the Tribunal held that the employer’s grounds for believing he was incapable of performing his job were not reasonable.

On appeal, however, the EAT held that the tribunal had substituted its own view for that of the employer and that the decision could not stand.

In reaching this decision the EAT recognised the familiar balance that exists between the employer’s duty of care to the claimant and its own commercial interests and confirmed that reasonableness should be approached in the same way as conduct dismissal cases. In so doing, the EAT also acknowledged that a GP’s certificate of fitness for work does not address question of whether the claimant is fit to work in a particular role.

About us

As trusted experts in employment law, HR and health & safety, we offer a range of flexible employee relations services under one roof. By delivering top quality, all-inclusive fixed-fee advice, we enable employers to take quick, confident and decisive action.

Read more

Areas of Expertise

Employment Law

Find out more

Health & Safety

Find out more