Recent EAT Case on Dismissal on Grounds of Incapacity

A recent case from the Employment Appeals Tribunal (EAT) provides a useful reminder for employers of the procedures to follow when a dismissal on grounds of incapacity is being considered.⃰ The EAT directed an award of €17,500 to the claimant after finding she had been unfairly dismissed when the company failed to follow its own procedures and breached the requirements of natural justice.

What happened?

The claimant commenced employment as a bus driver in 2007.  Between 2009 and 2014 she had 23 periods of sick leave. Some of these were at the request of the respondent in relation to a work related injury which she suffered. The respondent's medical evidence was that as a result of a medical condition she suffered, there was a high risk that she might pass out at the wheel of the bus. In light of this risk, their medical evidence was that she should be retired on grounds of ill health. The claimant's own medical evidence contradicted this point of view. The EAT noted that in circumstances where the medical evidence differed an independent medical opinion should have been obtained.  It was also critical of the fact that the HR department of the respondent merely rubber stamped the decision to recommend that the claimant be retired on the grounds of ill health. The appeal process was merely a review and the claimant was denied the right to a fair and impartial appeal.

The decision

The EAT applied the principles set out in the Bolger v Showerings (Ireland) Limited [1990 ELR 184] case. This case sets out the key requirements to be met when an employee is being dismissed for incapacity:

  • Ill health must be the reason for the dismissal;
  • this must be a substantial reason;
  • the employee must be notified that dismissal for incapacity is being considered; and
  • the employee must be given a chance to be heard. 

The EAT held as the respondent failed to adhere to the above requirements the claimant was unfairly dismissed.


The case provides a useful reminder of the procedures employers need to follow to when considering dismissing an employee on grounds of incapacity due to illness or disability. Each case must be treated on its own merits and the key issue for the employer is whether, in the circumstances, they could reasonably be expected to keep the position open. The decision of whether to, or when to, dismiss must be fair as must the procedures leading to that decision. In this regard the employer should ensure that:

  1. the employee’s attendance record has been fairly reviewed;
  2. the employee concerned has had the opportunity to make representations and reply;
  3. the employee has been given fair warnings that dismissal is likely where attendance does not improve/ there is no likelihood of a return to work within a reasonable period; and
  4. the employee has been given the right to appeal any decision made. 


The following is an outline of the steps that should be taken when considering a dismissal on the grounds of capability:

  • obtain an up-to-date medical opinion in relation to the employee’s condition and their possible future availability for work. This may require a specialist’s opinion and/or safety report. Where there is contradictory medical evidence a further independent medical opinion should be obtained;
  • determine whether there is a commercial need to dismiss. Disability or illness alone are not sufficient grounds for dismissal there must also be commercial grounds such as the need to employ someone else to do the job;
  • consider whether any reasonable accommodation could be made for the employee. This has been held to include vocational assessments and the hiring of a professional job coach; and
  • the employee concerned must be allowed a full opportunity to participate at each stage of the employer’s enquiry and be able to present relevant medical evidence. It is important to keep the employee informed at all stages of the process in order to enable them to participate fully.

⃰*Claire McKevitt v Bus Atha Cliatha (UD991/2014)

For more information please contact Sinead Grace, or your usual contact in A&L Goodbody Solicitors. 

Date Published: 5 April 2016