Can Employers Dismiss Employees Even If They Are Still Able To Do Part Of Their Job? (Student Blog)

Shook v London Borough of Ealing [1986] IRLR 46

Shook v London Borough of Ealing concerned whether the dismissal of an employee, on the grounds of incapability, was fair when she was still able to do part of her job.

Facts of the case

Miss Shook, who was a residential social worker, had back trouble, which led her to be off sick for over 8 months. During that time, she was examined by the principal medical officer of her employer (the London Borough of Ealing) who stated she was unfit, due to her back trouble, to carry out her duties because of the bending and lifting which was involved in her job. Both Miss Shook’s GP and consultant agreed with the view of the principal medical officer.

When Miss Shook was appointed, her letter of appointment stated that the Council had the right to place her in any department or section of the Council where her qualifications were suitable as well as change her duties or designation of her post.

The Council tried to find Miss Shook alternative employment within the Council. She was notified of 18 available posts similar to her status of residential social worker. She applied for 3 vacancies which she thought were suitable for her and she was offered one of those vacancies. However, she rejected this offer on personal grounds. As a result of this, she was then informed that her employment had been terminated as the Council had no other alternative available to her.

Miss Shook brought a claim for unfair dismissal. She claimed she had been wrongly treated as being incapable of carrying out her duties and that the Council had made insufficient effort to find her alternative employment.

The Industrial Tribunal’s decision

The Industrial Tribunal (as the Employment Tribunal was known at the time) dismissed Miss Shook’s complaint.

The Tribunal rejected Miss Shook’s argument that the Council had failed to take sufficient steps to secure alternative employment for her within the organisation. The Tribunal believed that the “employer had done all they reasonably could be expected to have done to find Miss Shook another job” on the evidence available, as the Council had made her aware of other roles similar to her previous job and she applied to a few of these vacancies. She was then offered one of these vacancies which she rejected “and no other jobs suitable for her were available”.

Miss Shook’s other argument was that it had been wrong for them to dismiss her on the grounds of incapability. This relied on s.57(2)(a) of the Employment Protection (Consolidation) Act 1978, which allows employees to be dismissed for reasons “related to the capability or qualifications of the employee for performing work of the kind which he was employed to do by the employer”.  Miss Shook contended that her contract allowed for her to be moved by the Council to any post, compatible with her qualifications and that the Council had failed to show she was incapable of performing this wide range of potential roles.

However, the Tribunal also rejected this.  The Tribunal found that Miss Shook was employed to carry out her duties as a residential social worker; they found “the fact her employer had a right to move her to something else does not detract from that limitation”. This meant that, though the Council could move her to another job (where she could carry out other duties which she was capable of doing), she was still incapable of performing the “work of the kind she was employed to do” (her main duties) hence her dismissal through s.57(2)(a) was found to be fair.

Miss Shook appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal’s (EAT) decision

The EAT held that the Industrial Tribunal “was correct in holding that the reason for Miss Shook’s dismissal was one relating to her capability for performing the work that she was employed to do”. The EAT’s reasoning was that they found the “analogy of redundancy put forward by Miss Shook was unsound” when linking it back to Miss Shook’s situation, which was “dismissal on the grounds of incapacity” as s.57(2)had 4 categories of reasons for dismissal, meaning that the situation had to be looked at more widely “when dealing with questions of incapability”. This meant it was not as simple as showing whether the employee was incapable of carrying out all tasks or not in Miss Shook’s case.  One of these categories was that the reason [for dismissal] must “relate to the capability for performing work of the relevant kind”. In this case, the relevant kind of work was the work Miss Shook was employed to do and she was incapable of performing that due to her back trouble despite her contract having a wide range of roles. The other tasks were not relevant in her dismissal. This means that an employee could be incapable of performing their work (for the purposes of dismissal) if they are unable to perform some of key duties of their role, such as bending and lifting patients in Miss Shook’s case.

Another argument made by Miss Shook was that “the employers’ right to move the employee to whatever role suited her qualifications under the letter of appointment carried a duty in law to provide work elsewhere within the organisation if the employee was incapacitated from performing any role in which she was currently engaged”. The EAT also rejected this argument. The fact that the Council had the right, under the letter, to move the employee to other roles, did not mean that the Council had a “duty in law to provide work elsewhere within the organisation”.

The EAT also stated, with the evidence available to them, “any reasonable Tribunal could have taken the view that [the Council] had done all they could reasonably be expected to have done to find her another job and that no other job acceptable to [Miss Shook] was available”, as she was made aware of posts similar to her previous job (as mentioned previously). In other words, the most the employer was obligated to do was to make Miss Shook aware of vacancies suitable to her qualifications as the EAT recognised that the Council had carried out the reasonable steps needed by an employer by the Council making Miss Shook aware of roles.

Accordingly, the appeal was dismissed by the EAT.

Summary

To summarise, the dismissal of an employee can be fair even if the employee is still able to do part of their job if they are not able to do an important part of their job. In Shook v London Borough of Ealing, a key part of Miss Shook’s role was bending and lifting patients and her injury made her incapable of this. As this was a key part of her current role, it was held fair to apply the reason of incapability to her case. This was despite the fact that the contract allowed for a much wider range of roles – of which she was not incapable. The importance of this is therefore incapacity will be assessed on the current role and the main duties of that role.

This case is significant as it highlights that the employer only has to show that the employee is unable to carry out important duties, key to their role, not all duties covered under their contract or future duties when proving that a dismissal is fair under the grounds of incapability. It is also important to mention that the statute covering this area of law is now s.98(2)(a) of the Employment Rights Act 1996 which states a reason [for dismissal] falls under the subsection if it “relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do”. This Act would now be used when deciding if the dismissal of an employee is fair or not.