A recent Court of Appeal decision highlights the fine balancing exercise to be carried out by employers when reaching a decision to dismiss an employee on long-term sick leave
A recent Court of Appeal decision (O’Brien v Bolton St Catherine’s Academy) highlights the fine balancing exercise to be carried out by employers when reaching a decision to dismiss an employee on long-term sick leave.
Ms O’Brien, a teacher, was off sick with stress, depression and post-traumatic stress disorder for over a year following an attack by a pupil and what she regarded as the school’s failure to deal adequately with aggressive students.
The school sought to establish Ms O’Brien’s prognosis and discuss any reasonable adjustments it could make to facilitate her return to work, but concluded that a return was unlikely in the near term. She was dismissed following a formal medical incapacity hearing. The decision was confirmed after an internal appeal, despite Ms O’Brien presenting a fit note from her GP indicating that she could return to work.
Ms O’Brien’s claims for disability discrimination and unfair dismissal were upheld by an employment tribunal, but this decision was overturned by the EAT. It held that the employer could not be expected to cope with Ms O’Brien’s absence any longer and was therefore entitled to dismiss her.
The Court of Appeal, by a majority (acknowledging the case to be ‘near the borderline’), restored the original decision of the employment tribunal that the dismissal was unfair and amounted to discrimination arising from disability. Once the school had received the new fit note, it should have waited ‘a little longer’ and sought further medical evidence before it confirmed the decision to dismiss. The dissenting judge disagreed, finding that the school was entitled to conclude that ‘enough was enough’ after such a long absence.
The Court’s judgment provides some useful guidance for employers dealing with employees on long-term sick leave:
- It is not necessarily unfair for an employer to dismiss an employee who has been absent for over 12 months with no certainty as to when he or she will be able to return.
- The severity of the impact on the employer of an employee’s continued absence must be a significant element in deciding whether dismissal is justified.
- The decision to dismiss must be fair on the basis of the information available at the time of the appeal, including any updated medical evidence.
This decision reiterates the need for employers to take into account up to date medical evidence before dismissing an individual on long-term sickness absence.
Following a formal absence management procedure is critical to dealing fairly with sickness absence, but it can be difficult to know what adjustments and allowances should be made for disabled employees. This is something that we will be looking at in our forthcoming series of Early Birds seminars, commencing in June 2017. Book your free place now.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2017.