Veitch Penny LLP - Exeter | Crediton, Devon

Case

O’Donoghue v Elmbridge Housing Trust
Employment Appeal Tribunal - (29th September 2003)

Issues

(1) Unfair dismissal
(2) Reason for dismissal
(3) Reasonableness

Facts

Kathleen O’Donoghue had been employed as a live-in Housewarden from 1989. She was dismissed at the age of 60. Previously she had wanted to retire but, as no alternative accommodation had been located which was acceptable to her, she continued to work. She then took 3½ months off work on health grounds. Consequently, the employer had requested her consent for a medical examination in order to assist her return to work. No satisfactory responses were received over a 3 month period and accordingly O’Donoghue was dismissed.

She then commenced proceedings based on unfair dismissal.

The Employment Tribunal found that the employer had done as much as it could to obtain the relevant information from O’Donoghue. In the circumstances, they had no alternative but to reach a decision with the facts available to it because of O’Donoghue’s total lack of communication and her continued refusal to provide medical information. The Tribunal found that the dismissal had been for reasons of capability and was fair.

O’Donoghue appealed the decision contending that the Tribunal had been incorrect.

Decision

The appeal would be allowed.

The reason for the dismissal was one of conduct and not capability. The dismissal here was unfair due to the lack of a disciplinary hearing or appeal hearing. The dismissal was not within the range of reasonable responses and accordingly would be remitted to a fresh Tribunal for misconduct or capability. Each of those options require separate approaches.

Comments

Consequently, it is vital that employers properly classify the reason behind a dismissal and then carefully follow the disciplinary procedure if appropriate.