Ill heath dismissal held to be fair ...

The Court of Appeal in Royal Bank of Scotland Plc v McAdie has upheld a decision by the Employment Appeal Tribunal ("EAT") that an employer fairly dismissed an employee on grounds of lack of capability even in circumstances where the employer's conduct had either caused or contributed to the employee's incapability.

Mrs McAdie had 20 years' continuous employment with RBS before she was asked to temporarily transfer to a different branch of the Bank. Mrs McAdie subsequently raised a grievance about the proposed transfer and her manager's conduct. She soon after went on sick leave. After discussions with her employer, Mrs McAdie expressed the view that the only suitable resolution would be for her to leave RBS with compensation. A number of months later RBS activated its long term sickness procedure. An occupational health specialist diagnosed Mrs McAdie with "severe adjustment disorder secondary to alleged workplace issues including harassment". At a meeting, Mrs McAdie expressed the view that she felt unable to return to work. Following the meeting, Mrs McAdie was dismissed on notice.

Although Mrs McAdie was successful in her claim for unfair dismissal in the first instance, the EAT overturned this decision. The Court of Appeal subsequently upheld the EAT's decision. The EAT held that although the employer's conduct was relevant to the question of whether it was reasonable for RBS to dismiss Mrs McAdie on the grounds of incapacity, this was not necessarily a bar to preventing an employer from fairly dismissing an employee. Otherwise, an employer may be required to employ an employee indefinitely even though there may be no prospect of the employee returning to work.

It was stated that in cases where the employer has caused or contributed to the employee's incapacity it might be necessary to "go the extra mile" to facilitate the employee's return to work. This is likely to include making an extra effort to look for alternative employment for the employee or potentially tolerating a longer period of sickness absence than would otherwise be reasonable.