Can’t work. Won’t work.
- By James Ferguson
A little learning is a dangerous thing
Alexander Pope (1688-1744)
The Court of Appeal in Belfast recently considered the distinction between an employee who, on grounds of disability, can’t work and one who simply refuses to engage and thus won’t work.
The Appellant had worked for the Respondents (Ulsterbus) as a cleaner and fuel dispenser at the Enniskillen depot since 2008. In 2014, he was diagnosed with cancer and went on to sick pay. In 2016, Independent Occupational Health (IOH) confirmed that the Appellant was fit to return to work.
The Respondent advised the Appellant of six redeployment opportunities in the next six months without a response, other than a tribunal claim alleged disability discrimination.
Following a meeting in April 2017, the Appellant was given notice of termination of his employment. This was met with a second Tribunal claim alleging unfair dismissal.
The Industrial Tribunals
It was common case that:
- the Appellant was employed by the Respondents;
- his employment was terminated by the Respondents;
- he was suffering from a disability at that time.
The Industrial Tribunals dismissed the Appellants claims, concluding that the Respondents had acted reasonably. His conduct evidenced “a marked lack of genuine interest in returning to work”. There was no evidence of discrimination. The dismissal was fair.
On Appeal, it was contended that the tribunal “… conducted the proceedings unfairly/violated the party’s right to a fair trial” with the Appellant seeming to fixate on a comment from his GP that he should not work with chemicals, which did not appear to be substantiated further.
The Court of Appeal concluded of the tribunals’ decision that:
It was, rather, in our estimation, the only decision rationally available to it.
It is noted that the Appellant was a self-litigant. Further, he appeared with the aid of a Polish interpreter, despite having himself taught English in his native country. Certainly, a party must understand proceedings. That they are represented is, however, equally important.
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