Ms H Fletcher v Represented by Mr D Cobb – Advocate Instructed by – Mr D Wapplington Nasuwt Officer Aberdeenshire Council — 2021

Ms Fletcher was employed as a visiting physical education specialist and had been absent from work from 4 February 2019 until dismissal on 2 July 2020. The tribunal accepted that she had a significant history of alcohol dependency and that during her absence the respondent obtained a sequence of occupational health reports, together with information from her treating psychiatrist and from her care manager, Ms Duthie. The evidence before the respondent included reports in July, September and November 2019, a January 2020 report that found her temporarily unfit, and a March 2020 report which said a phased return might be attempted only if specified conditions were met.

The tribunal found that the respondent had a reasonable basis for reassessing the position after the January 2020 discussions about a phased return. It accepted that Ms Duthie’s email of 9 January 2020, the later occupational health contact on 16 January 2020 when Ms Fletcher was said not to appear coherent, and the face-to-face report of 31 January 2020 all supported continued concern about alcohol use and fitness for work. The March 2020 occupational health report recorded that Ms Fletcher had last drunk heavily about six weeks earlier, had drunk again two weeks before the consultation, and might have been concealing the extent of her alcohol use. That report also recommended that she should not initially undertake unsupervised work with children and that another member of staff should be present at all times.

On the unfair dismissal claim, the tribunal held that capability was a potentially fair reason and that the investigation was reasonable. It said that, although a further updated medical report could have been sought between the March report and the July hearing, the absence of an update did not take the investigation outside the band of reasonable investigations in the circumstances of this case. The tribunal accepted Mr Docherty’s evidence that he considered the occupational health recommendations, the safeguarding concerns arising from the claimant’s role with children, the impossibility of providing the level of supervision suggested by occupational health, and the disruption caused by the claimant’s long absence. It also held that the appeal committee’s review on 12 March 2021 was thorough and reasonable.

The tribunal rejected the argument that failure to consider redeployment made the dismissal unfair. It noted that no occupational health recommendation for redeployment had been made and that Ms Fletcher had not asked to be redeployed, instead maintaining that she was fit to return to teaching. The tribunal concluded that the dismissal of 2 July 2020 and the appeal outcome were within the band of reasonable responses of a reasonable employer. On the contract claim, the tribunal held that the March 2020 occupational health report did not amount to a green light to return to work, that the respondent was entitled to conclude the conditions could not be met, and that there was therefore no breach in refusing to allow her back or in withholding salary for the claimed period. No monetary award was made.