Royal Bank of Scotland v McAdie: [2007] EWCA Civ 806

CA: Buxton, Rix and Wall LJJ: 31 July 2007

On an employee’s complaint of unfair dismissal, the employment tribunal concluded that the reason for the dismissal was incapability on the grounds of ill-health; that the employee’s health condition had been caused by the way the employer had dealt with a grievance she had raised; and that no reasonable employer would have dismissed in the circumstances because no reasonable employer would have found itself in that situation. It accordingly held that the dismissal was unfair under section 98 of the Employment Rights Act 1996. Allowing an appeal by the employer, the Employment Appeal Tribunal held that, while the employment tribunal had not erred in principle in being prepared to take account of the fact that the employer was culpably responsible for the employee’s ill-health, there had been no alternative to dismissal, as neither medical opinion nor the employee herself suggested that when the decision to dismiss was taken there was any possibility of her employment continuing, whatever action the employer might have taken.

The employee appealed.

The Court of Appeal held:
It was possible for an employer who had negligently been responsible for personal injury suffered by an employee in the course of employment none the less subsequently to dismiss the employee on the ground of capability without rendering the employer liable to a claim of unfair dismissal, and the claimant employee’s case was indistinguishable, given that the reason for her dismissal was indefinite incapability to do her job and that the manner of her dismissal was procedurally fair. The fact that the employer had caused the incapacity in question, however culpably, did not preclude him for ever from effecting a fair dismissal; if it were otherwise, employers would be obliged to employ indefinitely employees who were incapable of useful work. The question was whether it was reasonable, in the circumstances as they were at the time of dismissal, including the employer’s conduct, for the employer to dismiss the employee. The claimant had made it clear that she was not going to go back to work for the employer; and, on the facts, the employer’s culpability in bringing about the claimant’s incapability was not a basis on which it could be said that her dismissal was unfair.

The appeal was dismissed.

Appearances: Christopher Over, solicitor (Over Taylor Biggs, Exeter) for the claimant; Jane McNeill QC and Damian Brown (Brodies LLP, Edinburgh) for the employer.