BS v Dundee City Council

Factual and Procedural Background

The Appellant was employed by the Respondents in their Contract Services Department for 35 years before being dismissed on 23 September 2009. The Appellant initiated proceedings in the Employment Tribunal claiming unfair dismissal and seeking reinstatement. The Employment Tribunal found in favour of the Appellant, determining that the dismissal was unfair, and scheduled a further hearing to decide on the appropriate remedy. The Respondents appealed to the Employment Appeal Tribunal, which overturned the Employment Tribunal's decision and remitted the case to a newly constituted tribunal to determine whether the Respondents could reasonably have been expected to wait longer before dismissing the Appellant. The Appellant subsequently appealed to the Court of Session against the Employment Appeal Tribunal's decision.

The Employment Tribunal found that the Appellant suffered from nervous debility, depression, and anxiety following personal difficulties and a criminal charge that was later dropped. The Appellant remained off work due to sickness from 9 September 2008 until dismissal on 23 September 2009. The Respondents had a detailed sickness absence management procedure, including referrals to occupational health services. Despite repeated assessments, primarily by occupational health nurses, the Appellant's medical reports showed little change and failed to provide a clear return-to-work date until a doctor’s report shortly before dismissal indicated an expectation of return within one to three months.

The Respondents held a series of meetings with the Appellant, including a disciplinary investigation meeting regarding the criminal charge, and meetings to set return-to-work dates and discuss dismissal. The Appellant did not return to work by the set date of 14 September 2009 and was dismissed on 23 September 2009 due to ongoing sickness absence and the absence of a firm return date. The dismissal was appealed internally twice by the Appellant but was upheld both times.

Legal Issues Presented

1. Whether the dismissal of the Appellant on grounds of ill-health was fair within the meaning of section 98 of the Employment Rights Act 1996, specifically regarding the reasonableness of the employer’s decision.
2. Whether the Employment Tribunal properly applied the legal principles concerning fairness in dismissal for incapacity due to ill-health, including the adequacy of medical investigations and consultation with the employee.
3. Whether the Employment Tribunal erred in law by failing to explicitly address the balancing exercise required by precedent cases to determine if the employer could reasonably have waited longer before dismissing.
4. The extent to which the Appellant’s own views on his fitness to return to work and the relevance of his length of service should have been considered in assessing fairness.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed review of the Employment Tribunal’s findings and reasoning, focusing on whether the Tribunal had correctly applied the statutory framework under section 98 of the Employment Rights Act 1996 and relevant case law. It identified four principal deficiencies in the Employment Tribunal’s decision:

• The Tribunal failed to explicitly engage in the balancing exercise mandated by Spencer v Paragon Wallpapers Ltd, namely whether the employer could reasonably have waited longer before dismissal.
• The Tribunal did not adequately weigh the Appellant’s own statements about his health and ability to return to work, which were significant in assessing the reasonableness of dismissal.
• The Tribunal placed excessive emphasis on the need for further medical investigation beyond the report of the occupational health physician, Dr Spencer, overlooking that the employer’s duty is to take sensible steps appropriate to the circumstances as established in Daubney v East Lindsey District Council.
• The Tribunal treated length of service as an automatically relevant factor without properly considering its actual significance in the context of ill-health dismissal.

The Court noted that the medical evidence showed the Appellant’s health was improving and that a return to work was expected within one to three months, but the Appellant’s own views indicated he was not yet ready. The Tribunal had given disproportionate weight to the medical report without sufficiently balancing the Appellant’s perspective. Furthermore, the Tribunal did not clearly answer the critical question of whether a reasonable employer could have waited longer before dismissal, a question central to the fairness inquiry.

The Court also addressed criticisms by the Employment Appeal Tribunal of the Employment Tribunal’s approach and found some of these criticisms misplaced, particularly regarding procedural fairness and the interpretation of medical certificates. The Court emphasized that the dismissal decision involves an objective test of reasonableness based on all relevant facts and circumstances, including medical evidence, employee consultation, and operational considerations.

Holding and Implications

The Court REMITTED the case to the Employment Tribunal for reconsideration. The Tribunal is instructed to:

• Explicitly address whether any reasonable employer could have waited longer before dismissing the Appellant.
• Give appropriate weight to the Appellant’s own views about his fitness to return to work alongside medical evidence.
• Consider the extent to which further medical investigation was necessary and sensible in the circumstances.
• Reassess the relevance and impact of the Appellant’s length of service on the fairness of dismissal.

The Employment Tribunal is to reconsider its earlier decision in light of these directions and determine whether the dismissal was fair or unfair, and if unfair, to decide the appropriate remedy. The Court did not find it necessary to order that the reconsideration be conducted by a newly constituted tribunal, expressing confidence in the impartiality of the existing members.

No new legal precedent was established by this decision; its effect is to clarify the application of established principles in the context of ill-health dismissal and to ensure proper procedural and substantive fairness in the Tribunal’s reconsideration.