Scottish EAT uphold Brian Napier QC's argument on range of reasonable responses in NHS Fife Health Board v Dr Alan Stockman
Brian Napier QC successfully resisted an appeal brought by the Claimant pathologist’s former employer, the NHS Fife Health Board, to the Employment Appeal Tribunal against the finding of the Employment Tribunal that he had been unfairly dismissed. The Claimant’s registration as a doctor had been suspended on an interim basis after he had been convicted of driving under the influence of alcohol. Six weeks later he was dismissed while undergoing rehabilitative treatment. He led evidence before the ET that most doctors in his position recovered and that other health boards would not dismiss at an early stage of his receiving treatment.
Lady Stacey in the Scottish EAT upheld the ET’s finding of unfair dismissal. One aspect of her judgment is potentially of much wider relevance. She held that in gauging what is within the range of reasonable responses of an employer, a tribunal is entitled to hear and take account of evidence of what employers in the same line of business or profession would have done.
Sally Robertson comments that although the immediate context was that of doctors, the principle is as applicable to, say, union officers with lengthy experience of a particular industry. Moreover, it can apply also to evidence from employer organisations. With most tribunals considering unfair dismissal claims now being comprised of judges sitting alone, calling evidence about industry-wide or local standards and experience, could help make up in just a small way for the loss of the industrial jury.
The judgment can be found here.