Buddy says: Yes, the Employment Appeals Tribunal (EAT) in the recent case of Royal Bank of Scotland v McAdie have confirmed that the fact that an employer has caused the incapacity cannot prevent it from ever effecting a fair dismissal.

Employer information: In the McAdie case, a tribunal had found that Mrs McAdie had been unfairly dismissed as her employer had caused her to suffer from work related stress, which subsequently led to her dismissal owing to her incapacity. The Royal Bank of Scotland appealed the decision.

On appeal the EAT stated that whilst a tribunal should not ignore the fact that an employer caused the ill-health, the fact that an employer has caused the incapacity, however culpably, cannot prevent it from ever effecting a fair dismissal.

The EAT did however consider that there must be cases where the fact that the employer is responsible for an employee's incapacity is, as a matter of common sense and common fairness, relevant to whether and when it is reasonable to dismiss the employee for that incapacity. The EAT's suggestion was that in such cases it might be necessary for the employer to "go the extra mile" for the employee, for example in finding alternative employment for the employee or allowing a longer period of sickness absence than would otherwise be reasonable.

Employees who have suffered injury as a result of a breach of duty by their employers might have rights to claims before the courts, for example claims in negligence for personal injury. In light of the above decision, tribunals will have to resist being led by sympathy for the employee into granting compensation for unfair dismissal, which is in truth, compensation for injury.

If employers could be found to have unfairly dismissed owing to such reasons, a prime concern would be the reasonableness of the employer's conduct on the basis of what it reasonably knew or believed at the time of the dismissal, and for that reason a definitive decision on culpability or causation may be unnecessary.