ANDY MURRAY’S MEDICAL CAPABILITY HEARING

Nick runs through a hypothetical medical capability hearing with Andy Murray and considers whether dismissal would be fair if he was an employee…

I am an Andy Murray fan (controversial?) and was disappointed with the news from the Australian Open when it was reported that he may be forced to retire due to his injuries. This week, Andy has confirmed that he has had surgery on his hip, leaving me (and other fans) hoping he may be able to play again in the future.

Given the uncertainty regarding the length of his absence and whether he would be able to play again, it reminded me of a long term sick employee. How, if Andy was an employee of the tour, could his absence be dealt with?

Unfair dismissal – Capability

There are five potentially fair reasons for dismissal with the two most obvious being conduct and redundancy. Capability is also a potentially fair reason to dismiss someone. Capability refers to skill, aptitude, health or any other physical or mental quality. It is capability that could be the fair reason to dismiss an employee who is off due to long term sickness.

In addition to having a fair reason, it is also important that a fair process is followed. This process will include consulting with the employee before reaching the decision and ensuring that steps are taken to discover the true medical position.

There are a number of factors that would be considered when deciding if the decision to dismiss an ill employee was reasonable and these include:

Welfare Meetings

Andy’s employer should invite him to welfare meetings to find out how he is and understand the latest position regarding a return to work. These meetings should have been held regularly over the last 12 months given the ongoing issues and would certainly need to be held regularly once it was made clear that the absence is long term. It is unlikely that Andy would be invited straight to a medical capability hearing (or dismissed) and his employer should consider meeting with him a few times over the coming months to understand more about the long term effects of the injury, the operation and the likelihood of a return to work.

Occupational Health and GP/Medical Reports

It is important that Andy’s employer has ascertained the most up to date medical position before making the decision to dismiss.

Andy’s employer could write to his GP and ask about Andy’s medical condition and find out when, if ever, Andy would be able to return to work. When writing to the GP, it is important that Andy’s employer has a signed consent form from Andy or the GP will not provide a response or release Andy’s medical information. It is also important that the employer has properly considered what information they want the GP to provide and ensure that the GP understands what Andy’s role is.

GP reports can be good but they are often short, unspecific and can take a long time to be returned. Sending Andy to see an Occupational Health expert will ensure that the information is obtained quicker (provided he attends the appointment). Further, an Occupational Health report will usually respond to the specific questions raised. Again, consent is needed from Andy before Occupational Health are instructed.

Is Andy disabled?

The definition of disability in employment law is not the same as people use day-to-day when referring to a disability. Andy would be classed as having a disability if he has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

There are four parts to this test.

1. Does Andy have a physical or mental impairment? The hip injury appears to be a physical impairment so this part of the test is likely to be satisfied.

2. Does the hip injury have an adverse effect on normal day-to-day activities. Andy has said that he has struggled to even walk the dog as a result of his injuries. Normal day to day activities include things like shopping, reading, using the phone and carrying out household tasks. Walking the dog is the sort of activity that could be described as a normal day-to-day activity but it is not clear what other day-to-day activities he struggles with and further investigation would be required.

3. Is the effect substantial? Substantial is defined as being more than minor or trivial. I’m not sure how helpful that is. Severe pain which stops him being able to easily do an activity may be more than trivial but this is something again that would require further investigation and medical evidence.

4. Is that effect long term? An impairment will be long term if it has last at least 12 months or is likely too. Andy has had this injury for more than 12 months so this part of the test would likely be satisfied.

What difference does it make if Andy is disabled?

If Andy is classed as disabled, his employer would be under a duty to make reasonable adjustments. This is a stronger duty than the one an employer would be under to try and retain an employee who was off on long term sick. Adjustments could include adjusting premises (does Andy need a ramp to get on to court?), allocating some of his duties to someone else (could Kyle Edmund serve and then run off?), transferring him to another role (doubles?), providing additional breaks (after each game?), allowing him to work from home (might be a struggle) or modifying equipment (a longer racquet so he does not need to run as far?). An assessment would need to be made as to whether these would work in relation to the impairment and, then, whether they are practical, financially viable or generally reasonable from the employer’s perspective.

Medical Capability Hearing

If Andy’s employer has received medical evidence suggesting that Andy cannot return to work for the foreseeable future and they have regularly met with Andy to try and find a way to get him to return, the final step may be an invite to a medical capability hearing.

Any invite would need to be on notice and, if dismissal is a potential outcome, this would need to be made clear in the letter to Andy. It is normal to allow an employee to bring someone with them to a meeting like this. Given the reason for the meeting, employers usually allow employees to bring a family member with them (Judy or Kim?).

At this meeting, Andy’s employer would review the medical evidence from the GP or Occupational Health and allow Andy to comment on the contents. The employer would also ask Andy about his condition (including any treatment coming up or potential improvements), what the employer could do to get him back sooner or at all, when Andy thinks he could return and whether the employer has done everything they can to try and get him back.

Can they dismiss Andy Murray?

Ultimately, the employer would be assessing whether there is any prospect of Andy returning to work in the foreseeable future. If not, it may be reasonable to dismiss him.

Before the operation, a return may have never been likely. Now he has had further treatment, the medical evidence may be critical in determining time frame and the likelihood of him ever returning to his normal role (singles). Assessments could be made as to whether he could carry out alternative roles (doubles – maybe in 5 months, umpiring, a ball boy) all of which may impact on the time frame for a return and the reasonableness of a dismissal, but would the alternative roles be reasonable?

Cover is not an applicable consideration as someone else will play in the tournaments. Length of service could be a factor in giving him longer to try and return and he is one of the longest serving on the tour. The employer is big and has a lot of resources which may again suggest he should have more time to return and adjustments are more likely to be reasonable.

Deuce?

Short absences

Short term absences are often dealt with differently. Persistent but authorised short term absences can also lead to a dismissal and the potentially fair reason for dismissal would be “SOSR” which is Some Other Substantial Reason. Dismissal for short term absences would not normally occur without an employee receiving formal warnings and being set attendance targets. Consideration would also have to be given to whether the employee was disabled and the additional protection that would give the employee (for example, the duty to make reasonable adjustments).  Given Andy missed most tournaments in 2018, his persistent short term absences are something that may also need to be addressed.

Fingers crossed that he can return and the operation is a success. I hope they don’t dismiss Andy Murray!

Nick