David J P Hay

Noteworthy Decision of Inner House in Ill Health Appeal


An Extra Division of the Inner House handed down its decision in BS v Dundee City Council on 12 November 2013, and in doing so has provided valuable guidance to Employment Tribunals in dealing with ill health capability dismissals.

BS was a carpenter joiner with 35 years of unblemished service. He went off work sick for an extended period (just over a year). Absence management by the employer did not gain insight into BS’s prognosis until a doctor’s opinion that BS could be in a position to return within 1 to 3 months. His employer dismissed him shortly after receipt of this report, placing reliance upon the fact BS’s GP had not issued a final line and that he had indicated at recent meetings he did not think he was getting any better.

BS was successful in claiming unfair dismissal at the Employment Tribunal. The Council successfully appealed to the EAT, whose decision in respect of the sorts of enquiry an employer should be expected to make has been cited, and relied upon, by Employment Tribunals in other cases.

BS appealed to the Inner House and instructed Westwater Advocate’s David Hay. Dundee City Council instructed senior counsel. In allowing the appeal, the Inner House agreed that the EAT had put certain matters on too high a footing and disagreed with its criticisms of the ET decision. It remitted the case to the same tribunal to consider a number of issues that it considered had not properly been addressed. In particular the Inner House considered the proper approach to be taken by Employment Tribunals in determining whether ill health dismissals are fair.

David Hay said: “This decision is an important addition to the case law on ill health dismissals and would appear to be the first decision at Inner House level. It serves as a useful refresher on the principles drawn from the previous, key EAT authorities in this area, both of which date from the 1970s. In confirming that the ratio of those decisions remains good law, the Inner House gives useful insight into how a tribunal is properly to apply those principles at paragraphs [23] to [31]. In addition, the Division’s comments on the relevance of length of service, particularly at paragraph [32] and [33], will be of interest to practitioners and tribunals.”

David Hay has a particular focus on employment law in his practice, and argues cases at the ET, the EAT and in the Inner House. He is recommended for Employment Law in both the Legal 500 and Chambers UK 2014.