Dismissal due to Incapacity

Can an employee be dismissed due to their incapacity?

Yes, however, an employee can only be dismissed due to their incapacity once that incapacity was the primary reason for the dismissal, that incapacity was substantial relative to the work undertaken, that the employee received fair notice and that the employee was afforded an opportunity of being heard, prior to any final decision taken. 

Dismissal due to incapacity

A matter recently came before the Workplace Relations Commission which examined the criteria to be assessed when an employer dismisses an employee on the basis that they are no longer fit to undertake the work originally intended.

In this case (A General Operative -v- A Food Processing Company - ADJ00016678), an employee suffered a work injury in November 2016 which caused him long term back pain. He was then absent from work for approximately 20 months which resulted in the eventual termination of his employment due to incapacity. 

Justifying a dismissal due to incapacity

The Workplace Relations Commission set out the legal tests that must be satisfied when an employer cites incapacity as a justification for the dismissal of an employee. 

The issue of the reasonableness of an employer’s response to the absence of an employee who is incapacitated is well set out in the case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which it refers to the function of the tribunal’s adjudicator on assessment of the facts,

“to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

The role of the Workplace Relations Commission is to investigate the decision taken to dismiss and to decide whether substantial grounds contributed to this decision and whether the employer acted within the “band of reasonableness” of a reasonable employer. This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained in Union of Construction Allied Trades and Technicians v Brane [1981] IRLR 224 in the following terms: -

 “It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances.”

Unfair dismissal and dismissal due to incapacity 

The Adjudication Officer, in this case, noted that the employee had been absent due to his back injury for 20 months at the date of dismissal. It was further noted that the medical evidence put forward did not suggest any hope that the employee would ever return to the same role in the future.

In fact, the medical evidence was quite negative on the ability of the individual concerned to undertake manual work of this nature in the future.

The employee was not in a position to provide any contrary medical evidence to counteract that position.

That being the case, the Workplace Relations Commission was then required to ask whether the process leading up to the dismissal was fair. In this instance, it cited the high court case of Bolger v. Showerings (Ireland) Ltd [1990] ELR 184, which provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for incapacity. The Complainant’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court. In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) the judge stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1)  It was the ill health that was the reason for the dismissal;

“(2)  That this was the substantial reason;

“(3)  That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4)  That the employee was afforded an opportunity of being heard.”

Conclusion

Applying the Bolger criteria to this case, the Workplace Relations Commission noted that the employee was put on notice that the termination of his employment was his employment was being considered and that he was welcome to put forward any contrary medical evidence which may have counteracted the narrative that he was unfit to undertake his duties. 

The employee concerned was unable to do so. 

That being the case, the Workplace Relations Commission found the decision of the employer to dismiss the employee was reasonable and that the process was fair.

Further Information

For further information, please contact the author of this article, Barry Crushell.