Where an employee was long-term absent through ill health and the employer's pension scheme contained enhanced provisions for ill-health retirement on the ground of permanent incapacity, fairness required the employer to take reasonable steps to ascertain whether the employee was entitled to the benefit of ill-health retirement before dismissing him for incapacity.

 

The appellant employer (F) appealed against an employment tribunal's decision that it had unfairly dismissed the respondent employee (H), a bus-driver. H, who was approaching 60 years old, had suffered two brain disturbances. After he had been off work for eight months, F gave him the choice of dismissal or retention on the condition that he give up any claim he might have to an ill-health retirement pension. He refused to accept the terms, and F dismissed him on the ground of incapability. The tribunal held that F had wanted to avoid the cost of H's taking ill-health retirement and it had been unreasonable for it to try to make him forgo that option when it did not have any medical evidence to indicate whether or not his condition would be permanent. F contended that the tribunal had erred in law in holding that it should have considered whether H was entitled to ill-health retirement before considering whether to dismiss him.

HELD: Where an employee was long-term absent through ill health and the employer's pension scheme contained enhanced provisions for ill-health retirement on the ground of permanent incapacity, fairness required the reasonable employer to take reasonable steps to ascertain whether the employee was entitled to the benefit of ill-health retirement before dismissing him for incapacity. An employer who did so would generally meet the standard set out in the Employment Rights Act 1996 s.98(4). The tribunal had not erred in approaching H's case on that basis. Prior to his dismissal, the question of whether H's condition was permanent was never answered. The tribunal had been entitled to find that F should have waited for a specialist's opinion before reaching its decision. Further, the tribunal had been entitled to find that it was unreasonable to make H choose between dismissal and retention on the condition that he give up any right he might have to ill-health retirement. There was no clear evidence at that stage whether H was entitled to such a pension and no justification for imposing such a choice.

Appeal dismissed

Counsel for the respondent: Deshpal Panesar.