East Lindsey District Council v Daubney [1977] IRLR 181

When a tribunal is assessing reasonableness of a medical capability dismissal, it will expect to see that there has been an amount of communication between the employer and employee; and that the employer has taken steps to identify the true medical position.

Mr. Daubney was one day short of his 57th birthday when, on the 13th November, 1975, he was dismissed by the East Lindsey District Council, where he had been employed as principal assistant building surveyor. Over the previous 6 months, he had been absent from work due to various reasons, including a stroke; general debility and anxiety.

The Council had taken instruction from a District Community Physician who had indicated that, in his opinion, Daubney’s state of health was such that he was unable to carry out the duties of his post, and recommended that he be enabled to retire immediately on the grounds of ill health. Although a medical report had been sought, the Council did not consult with Daubney over his health, nor his opinion on his future employment with the Council sought.

The EAT found that, where no consultation is carried out, an injustice has been done. It did not accept the argument that consultation with Daubney would have been fruitless, stating that this would be the case in only the rarest of circumstances.

Specifically, the EAT stated:

“Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health, it is necessary that he should be consulted and the matter discussed with him, and that in one way or another, steps should be taken by the employer to discover the true medical position. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware and which will throw new light on the problem.”

It went on to say that “it is not the function of employers, any more than it is of Industrial Tribunals, to turn themselves into some sort of medical appeal tribunal to review the opinions and advice received from their medical advisers. While employers cannot be expected to be, nor is it desirable they should set themselves up as, medical experts, the decision to dismiss or not to dismiss is not a medical question, but a question to be answered by the employers in the light of the available medical advice. It-is important therefore that when seeking advice employers should do so in terms suitably adjusted to the circumstances. Merely to be told, as the District Council were told, because that is the question they asked, that an employee “is unfit to carry out the duties of his post and should be retired on the grounds of permanent ill health”, is verging on the inadequate”.