Hello and welcome back to our Case of the Week. Last time, we explored whether health and safety concerns can justify the refusal of reasonable adjustments in Mahoro v The Northern Care Alliance. If you missed it, you can catch up here

This week, we turn our attention to the recent case of Granger v Scottish Fire & Rescue Service.

Background

The Claimant, was employed as an Operational Firefighter by the Respondent. His role demanded a high level of physical fitness and involved challenging tasks such as lifting heavy equipment, operating in dangerous environments and rescuing individuals from burning buildings. Over time, The Claimant developed significant musculoskeletal issues and suffered from stress, leading to extended periods of absence from his operational role.

Between January 2020 and March 2023, The Claimant had five episodes of absence due to various health reasons, including stress, neck surgery, COVID-19, and ongoing musculoskeletal pain. He was referred to Occupational Health (OH) several times and was eventually placed on temporary alternative duties. However, these duties were meant to be temporary and did not replace his substantive role.

When a permanent Community Firefighter role opened, the Claimant declined the opportunity, expressing a strong preference to continue in his original role. At the time, OH assessments indicated he was not fit for operational duties and recommended medical evaluations from specialists.

Eventually, Heales, an independent health provider and an Independent Qualified Medical Practitioner (IQMP) both concluded that the Claimant was permanently unfit for operational firefighter duties. More importantly, unfit for any full-time employment within the Respondent.

Despite initially agreeing to explore ill-health retirement, the Claimant changed his mind and attempted to withdraw from the IQMP assessment process. He was informed that the process could not be reversed once it was initiated. The IQMP determined that the Claimant was eligible for ill-health retirement under the pension scheme’s higher tier.

The Claimant’s employment was terminated on 23 March 2023 for incapacity due to ill-health.

Employment Tribunal (ET)

The ET rejected the Claimant’s claims of unfair dismissal and disability discrimination under s.15 of EqA 2010. The ET concluded that his dismissal was not due to capability. It was because he had been deemed to qualify for ill-health retirement. The Tribunal considered this distinction to be meaningful. The ET decided the dismissal was fair and that it fell under the legal category of ‘some other substantial reason’ rather than ‘capability.’

The ET acknowledged that procedural elements of the process were lacking, such as the decision-maker not reviewing relevant OH reports and potentially pre-determining the outcome. However, those deficiencies were not significant because the dismissal wasn’t framed as a capability issue.

Employment Appeal Tribunal (EAT)

On appeal, the EAT overturned the ET’s ruling on two main grounds.

The EAT found that the ET had wrongly classified the dismissal as being for some other substantial reason rather than on the grounds of capability. The dismissal letter explicitly quoted incapability due to ill-health. The EAT held that ill-health retirement is not a separate reason for dismissal but a potential outcome of a capability process. Therefore, the process should have been judged as a capability-based dismissal.

Because the ET incorrectly treated the dismissal as not being about capability, it failed to apply appropriate legal standards for procedural fairness. It ignored its own findings that the process would have been deemed flawed had it been a capability dismissal. In addition, there was inadequate consultation with the Claimant and significant reports were not reviewed.

The EAT ruled that these procedural flaws should not have been overlooked and the case was remitted to the same Tribunal to re-evaluate fairness, this time treating the dismissal as one for capability.

Takeaway Points

When dismissing an employee, especially for health-related reasons, the stated reason must align with legal definitions. If you are dismissing due to health, it is typically a capability dismissal and not some other substantial reason even if ill-health retirement is involved.

Even where there is strong medical evidence supporting a dismissal, proper procedures must be followed. This includes reviewing all relevant reports, consulting with the employee, and documenting the process clearly.

The procedural safeguards will vary depending on context, but the threshold for fairness in capability dismissals is still high. Each case must be treated with individual care and attention.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.