Perth and KinrossMost employers know that it is foolhardy to dismiss an employee for incapacity based on sickness unless medical evidence has been obtained to support the decision. The fairly straightforward reason for this is that a sickness incapacity dismissal will generally be unfair unless it has been established that the employee will be unfit to return to work for the foreseeable future. That is an assessment which needs to be made by a medical professional rather than the employer.

Employers can ask for a report from the employee’s GP. However, GPs tend to be influenced by the wishes of their patients so there may be a reluctance to provide such a definitive assessment. As a result most employers will obtain an independent occupational health assessment before dismissing for this reason.

The Employment Appeal Tribunal decision in Perth & Kinross Council v Gauld reinforces the need for medical evidence, but in this case in the context of a dismissal for misconduct. Mrs Gauld, a solicitor, was diagnosed as having cancer in 2008. She was off work in December 2008 and January 2009 and when she returned adjustments were made including working shorter hours. She commenced psychological counselling in late 2009. In 2010 her manager spoke to her about a query raised with her work. Shortly afterwards she went off work and never returned.

Her absence was attributed to work-related stress. However her complaint that this was caused by her manager’s behaviour towards her was rejected. Instead the Council commenced disciplinary proceedings against her as a result of the complaints made about her manager. Those proceedings led to her dismissal for misconduct and an appeal was unsuccessful.

Her resulting claim for unfair dismissal was successful. The facts of the case which emerged in the hearing are complex and remarkable. Evidence had been obtained from an occupational health consultant which stated that Mrs Gauld had concerns about the way she had been treated by her line manager and that she felt that she had been treated insensitively. Somewhat surprisingly the employer then asked her to attend a meeting to discuss her sickness absence, with her line manager. Mrs Gauld objected and a meeting took place with another manager. Prior to the meeting and based on advice from her union representative she withdrew her grievance. However her line manager was not satisfied with the outcome of the meeting. She wanted to clear her name and wanted the allegations in the withdrawn letter investigated. The investigation concluded that, taking into account a further email from Mrs Gauld, she maintained her criticisms of her line manager. A stress action plan was proposed but on the understanding that the employer did not imply in the plan that the line manager had done anything wrong. Nonetheless the line manager said that she could not participate in an action plan based on unsubstantiated allegations.

Mrs Gauld obtained a report from her psychological counsellor which attributed her stress to her line manager. Her line manager was angry about this and Mrs Gauld was suspended on the basis that “there had been no changes to her perceived stressors in the workplace”.

In the meantime there was an investigation concerning any issues that needed to be addressed concerning the line manager. Mrs Gauld said that she could work with her line manager and did not understand why an investigation was necessary following the withdrawal of her grievance. She also offered to attend mediation. Her line manager remained concerned about criticisms of her management style, said that she would find it difficult to trust Mrs Gauld in the future and that she wanted the investigation to continue because of the effect that the allegations had on her credibility as a manager. the investigation concluded that there was no evidence that the line manager had been unsupportive or inappropriate in her tone or manner towards Mrs Gauld at any time. Mrs Gauld’s union representative advised her to accept the report and get on with arrangements for returning to work. He also said that she felt vulnerable and this was as a result of her previous illness. This was not accepted by the manager reviewing the investigation. He told Mrs Gauld that the report exonerated her line manager.

He wrote to Mrs Gauld and informed her that no further investigation was required. Remarkably, he continued by informing her that her allegations were “unfounded and inapprorpriate” and therefore in breach of the Council’s Employee Code of Conduct and Employee Charter. Accordingly she was subject to a disciplinary charge that she had “raised a complaint against your manager that had no basis in fact”. A few days later he wrote to inform her that the charge could result in dismissal for gross misconduct.

Mrs Gauld obtained a further medical report from her psychological counsellor which stated that following a cancer diagnosis people can encounter unexpected post-traumatic stress. She felt that Mrs Gauld had returned to work too quickly. At a disciplinary hearing the manager conducting the hearing (the same manager who reviewed the investigation) unsurprisingly reached the same conclusion as before that Mrs Gauld’s illness had anything to do with her actions. Notifying her of her dismissal following the hearing the manager said that he felt that “medical reports often say what the authors believe their patients want them to say”. An appeal which considered extensive further evidence from the psychological counsellor upheld the dismissal.

The employment tribunal concluded that the Council should have obtained its own medical evidence if they were concerned about the quality of the medical evidence provided by Mrs Gauld. Further, the manager who conducted the review of the investigation and the disciplinary hearing did not approach the matter with an open mind.

On appeal it was contended that the tribunal had substituted its own view for that of the employer. This was rejected.

Reading between the lines it seems that the employer had fallen into the trap of reaching a conclusion about Mrs Gauld before the required processes were completed. Had the employer obtained medical evidence which contradicted the views expressed by the psychological counsellor then its position would have been somewhat stronger, However, its failure to do so was fatal to its case.