Is it automatically unfair to dismiss an employee who is off long-term sick due to work-related stress?
That was the question that came before the employment appeal tribunal this week in the Royal Bank of Scotland (RBS) v McAdie.
Mrs McAdie, who had worked for RBS for 20 years, had developed a stress-related condition owing to the behaviour of a manager, this was exacerbated by the company’s failure to deal with her subsequent grievance effectively.
She took the RBS to an employment tribunal citing sex discrimination and unfair dismissal. The sex discrimination claim was dismissed but the tribunal upheld the unfair dismissal claim.
The tribunal stated that although the reason for dismissal was capability, which is potentially a fair reason for dismissal, Mrs McAdie’s health condition had been caused by her employer and this should be taken into account when considering the fairness of the dismissal.
The tribunal found that the RBS “had gone through the motions in respect of their procedures but had never properly addressed the complaint that was being made”.
It added it was: “Satisfied that no reasonable employer would have dismissed in these circumstances because no reasonable employer would have found themselves in these circumstances.
“A reasonable employer would have investigated the matter properly at an early stage.” Only then would the ground have been firm enough for the employer to consider termination of employment.
But the employment appeal tribunal said that although it had sympathy with Mrs McAdie, the tribunal should have focused on what it was reasonable for the employer to do ‘in all the circumstances’ – including being responsible for her illness, rather than the question of culpability.
Mr Justice Underhill said it was unreasonable for employers not to be able to dismiss staff who were incapable of returning to work.
But when the employer had caused the illness it would “be necessary in such a case to ‘go the extra mile’ in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable”.
He also added: “Employees who have been injured as a result of a breach of duty by their employers are entitled to compensation in the ordinary courts, which in an appropriate case will include compensation for lost earnings and lost earning capacity.”
