The claimant was a qualified doctor who worked for the Health Board as a pathologist from December 2006 until October 2012. He had a history of alcohol problems at work but no disciplinary action had been taken. In May 2012 the claimant was convicted of a drink-drive offence and as a consequence, his General Medical Council registration was suspended for 18 months. Reference to a consultant occupational therapist resulted in a report stating that the claimant was unfit for work but was likely to ‘successfully rehabilitate’ and a review in 4 weeks would be appropriate to allow further medical reports. On 30th July, the claimant signed up to LEAP, a medical abstinence programme.

It was the Health Board’s policy that loss of registration was a capability issue and if it was decided that performance would not become acceptable and no suitable permanent redeployment could be found, the employee would be dismissed. Updated policy guidelines issued in April 2012 removed loss of registration from the ground of ‘capacity’ but this had not been implemented.

At the capability hearing the claimant was told that his employment would be terminated due to the ‘indeterminate’ period of non-registration and that no suitable alternative post could be found. Stockman claimed unfair dismissal.

The question was whether the dismissal for capability was within the band of reasonable responses available to the employer. The tribunal commented that whilst a band of reasonable responses is available to every employer; i.e. verbal warning, written warning, second warning then dismissal, two different employers may act in different ways and both are reasonable.

The tribunal expressed that a reasonable employer would have considered using the new policy guidelines as this would have allowed suspension of the hearing until after treatment and being informed of up to date medical evidence. It was noted that a reasonable employer would have taken in to account actions of similar employers and persuasive evidence showed that NHS employers would examine a recent medical record. As the Board had failed to do this by using the old capability policy which concluded in dismissal if there was no suitable redeployment, the tribunal concluded that the dismissal was not within the band of reasonable responses and the claimant had been unfairly dismissed.

The Board appealed to the Employment Appeal Tribunal. The EAT agreed with the original tribunal’s decision and dismissed the appeal.