We’ve all dealt with situations where the background contains a grievance where the employee feels aggrieved that they have been, in their view, ‘bullied’ and they have ended up absent from work due to ill-health.
To dismiss somebody fairly for capability under the Employment Rights Act 1996 you have to follow a fair procedure, which usually involves consulting with the employee, getting up-to-date medical advice or other medical investigation, and considering whether there are any other options for the employee within the business.
The courts view is that where an employees’ medical condition has been caused by bullying, you need to wait longer than usual to dismiss and go further and help that person back to work before you can safely do so. This was confirmed in The Royal Bank of Scotland v McAdie case in the Court of Appeal in 2008.
You need be able to show to a judge that you had effectively dealt with any bullying and have taken such steps that are reasonable in the circumstances. This could involve things like attempting mediation, taking disciplinary action against offenders and looking at alternative employment. The other step that might be reasonable is to preserve employment before you start looking into the termination.
Of course, that assumes that there has actually been bullying. If there is no evidence of bullying, then it will be harder for somebody to argue that you failed to take reasonable steps.