X v Represented by:10 Mr R Brown – Solicitor South Lanarkshire Council — 2019

The claimant had been employed by South Lanarkshire Council since 17 August 1998 and was working in Early Years when she went off sick on 31 August 2015. After a fact-finding investigation and disciplinary process, she received a final written warning; an initial demotion was removed on appeal in August 2016. While she remained absent, the respondent held attendance support meetings and obtained occupational health reports from Dr Herbert.

At the incapability hearing on 4 July 2017, Mr McDaid dismissed the claimant on the grounds of incapability. The tribunal held that the respondent had not established a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996, because Dr Herbert’s final occupational health report said the claimant was fit with restrictions/adjustments and was currently fit for altered duties from those she undertook at present. On that basis, the tribunal was not satisfied that capability had been made out as the reason for dismissal.

In the alternative, if capability had been established, the tribunal held the dismissal was still unfair under section 98(4) because the respondent had not made sufficient efforts to look for suitable alternative work outside Early Years and the Education Sector. The tribunal noted that the respondent had considered some posts within Early Years and that the claimant had rejected them, but found the wider search for redeployment insufficient in light of her request to be considered for work elsewhere within the council. Liability only was decided; remedy was left to a later hearing.