In NHS Fife Health Board v Dr Alan Stockman, Stockman (S) was a doctor convicted of driving while under the influence of alcohol.  His registration with the General Medical Council was suspended on an interim basis.  He was signed off as unfit for work while undergoing a course of treatment. The employer dismissed S, 6 weeks after his suspension on grounds of capability.  S had provided evidence at a hearing and an appeal that he was likely to respond to treatment, that most doctors in S’s position did recover and that his suspension was likely to be revoked. 

A tribunal found the dismissal was unfair. Expert medical evidence presented showed that NHS employers would always get an up to date medical report, a doctor was unlikely to be dismissed while getting treatment and the majority succeeded in getting back to work.  In addition, a HR specialist, who had been an assistant secretary at the BMA for 7 years stated that she had never known of a doctor being dismissed in these circumstances.

The EAT rejected the employer’s argument that the tribunal had substituted its own view and had wrongly admitted evidence of the supposed attitude of other health boards and opinion evidence from doctors who stated that the S was likely to recover, and that other health boards would not dismiss at that stage. The tribunal had directed itself correctly in law and was entitled to hold that the employer had not carried out a reasonable investigation and had not acted fairly in all of the circumstances.  The opinion evidence of the doctors was admissible.

The practical implications in such circumstances are threefold: (i) firstly, any decisions must be based on the most up-to-date medial opinion; (ii) where the employee provides his or her own medical evidence, that must be given very careful consideration; (iii) if there is any doubt about the medical evidence, the employer should obtain its own medical report, before taking any decision to dismiss.

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