This appeal involved a claim of unfair dismissal. The complainant had been dismissed by her employer on the grounds that she did not have the capability to perform her role as a bus driver. The complainant had a multiplicity of health problems and absences, which combined, led to a multi- factorial conclusion that the complainant was unsuitable to continue working as a bus driver. The company stated that this decision was based on the fact that safety was their number one priority and that they had a duty to protect employees, the general public and the travelling public. The Court heard that this duty was fulfilled by carefully monitoring the 'tolerance' of employees and their capacity to deal with various aspects of their role, including stress. Based on a number of medical appointments, reports and the complainant's medical file a decision was made to find her permanently unfit for public service bus driving, and to recommend that she take ill health retirement. The complainant was told in a number of consultations with the company's occupational physician that he intended to recommend her for retirement on ill-health grounds and this recommendation was confirmed in writing 2 months later.

Accordingly, the Court held that fair notice of the intended dismissal was given to the complainant. They also stated that where a judgment call has to be made on whether someone's medical history renders them unfit for work then it is sensible for such a decision to be made by the appropriately qualified medical personnel, as opposed to the HR department. The Court felt that the complainant had been afforded an opportunity to put her case forward in circumstances where 23 medical reports had been considered along with a number of appointments.

The Court found that the complainant had no right to appeal the decision to dismiss her in either legislation or through cited authorities, particularly where the circumstances require an expert medical assessment of an employee's fitness. Accordingly, the Court allowed the appeal and vacated the original Circuit Court order.
http://www.bailii.org/ie/cases/IEHC/2018/H78.html