Employers should have consulted doctors before dismissing a cancer patient with post-traumatic stress In the recent case of Perth & Kinross Council v Gauld the Employment Appeal Tribunal had to decide whether an employers failure to consider medical evidence presented by an employee, or to seek its own medical evidence, made her dismissal on conduct grounds unfair. Legal background Under section 98 Employment Rights Act 1996, dismissing an employee will be unfair unless the employer can show it had a fair reason for the dismissal and acted reasonably in dismissing the employee for that reason. Facts Gauld was a local authority employee who had returned to work after a period of sick leave during which she had received treatment for cancer. Following criticism from her line manager over a piece of work, she went off on sick leave again, on grounds of work-related stress. While on sick leave, she told the line manager that she was the cause of the stress, alleging that the line manager had been unsupportive of her and had undermined her. Gauld later withdrew these allegations. However, the employer decided to investigate the allegations and concluded there was no evidence that the line manager had been unsupportive or had behaved inappropriately. The local authority began disciplinary proceedings against Gauld on the basis that the complaints against her line manager were unfounded and inappropriate and had no basis in fact. Gauld provided the local authority with reports from her clinical psychologist, whose view was that she had returned to work too soon after her treatment and was suffering from post-traumatic stress. The manager in charge of the disciplinary proceedings did not accept that Gaulds illness had anything to do with her actions, and she was summarily dismissed for gross misconduct. At the appeal stage of the procedure, Gauld provided a more detailed report from her psychologist, which stated that the claims against her line manager were a result of over-sensitivity to perceived criticism commonly caused by cancer-related post-traumatic stress disorder. The appeal panel decided this was not a likely reason for Gauld making and persisting with allegations of mistreatment, although the panel did reduce the sanction to dismissal on notice. In reaching this conclusion, the manager in charge of the disciplinary and the appeal panel had dismissed the medical evidence provided by Gauld, but did not obtain their own evidence on her condition. Tribunal and EAT Gauld brought claims of direct disability discrimination, failure to make reasonable adjustments, victimisation and unfair dismissal in the employment tribunal. The unfair dismissal claim succeeded but the other claims failed. In upholding the unfair dismissal claim, the tribunal found that the employer had disregarded Gaulds medical evidence without good reason. The employer should have obtained its own medical evidence if it had concerns about the quality of the evidence presented. This failure meant that the employers belief that Gauld was guilty of misconduct was not reasonable, and its failure to engage with her position meant her dismissal was not within the reasonable range of responses. On appeal, the tribunals decision was upheld by the EAT. Comment While it may not break new ground, this case serves as a useful reminder to employers of the care they need to take when approaching medical evidence provided by an employee. If an employer has reservations about the quality or credibility of medical evidence, it should obtain its own evidence before disregarding an employees evidence. In a situation involving dismissal, failure to do so could lead to a finding of unfair dismissal. A situation of this sort could also give rise to a claim that an employee has been treated unfavourably for a reason arising from a disability (although it does not appear that such a claim was brought in this case). An employer would find it difficult to demonstrate that its actions were justified in the absence of medical evidence about the impact of the disability. Sarah Parkin is an associate in the employment team at Hogan Lovells
Posted on: Tue, 15 Jul 2014 09:12:37 +0000
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