An employee (C) appealed against a decision of the employment appeal tribunal (E) reversing a decision of the employment tribunal (T) that C had been unfairly dismissed, setting that decision aside and remitting it to a new employment tribunal panel.

The issue for determination was whether or not his employers (P) could reasonably have been expected to wait longer before dismissing him. C was employed by P for 35 years. The reason cited for C dismissal was incapacity. In September 2008 C suffered from a nervous disability following a charge of serious criminal offence. C’s GP approved his absence from work based on depression and anxiety.

The charge against C was dismissed in May 2009 yet C remained off work until his employment was ended on 23 September 2009. P had 16 informed C on 12 August 2009 that he was to return to work on 14 September 2009 unless he remained unfit to work, in which case his employment would be in jeopardy and P would consider his dismissal. A consultant occupational health physician provided a verbal report on 14 September 2009 stating whilst C’s health was improving and he was not perpetually debilitated, he was unfit to return to work straightaway. It was estimated that C could return to work within the next one to three months. On 23 September 2009, P dismissed C due to the uncertainty of a return date to work.

C appealed, claiming P had no medical evidence to support the dismissal. C claimed the decision was unfair as P decided to dismiss C nine days after receiving P's report and this was outside the range of reasonable procedures that a reasonable employer might have deployed.

The case was remitted to P to consider the following issues; P had not addressed the issue of whether or not a reasonable employer would have waited longer before dismissing C; P failed to give sufficient regard to C’s views on his own ability to return to work; Too much emphasis was placed on the need for more medical evidence, especially in light of the fact that the obligation on a reasonable employer was only to conduct medical investigations as were practical in the circumstances; C’s length of service was a factor that warranted consideration both when making a decision to dismiss and at the appeal hearing.

http://bit.ly/1gbRubg