In O’Brien v Bolton St Catherine’s Academy, the Court of Appeal has provided useful guidance on effecting a fair and non-discriminatory dismissal for long-term sickness absence. Tribunals will consider evidence on the severity of the impact of the continuing absence on the employer when deciding if dismissal was justified at a particular time.
Ms O’Brien was a teacher at Bolton St Catherine's Academy. In March 2011, she suffered an assault by a pupil. After some further incidents, on December 2011 she went off sick with stress. There were subsequently other diagnoses, including anxiety, depression and post-traumatic stress disorder. After she had been off work for over a year and following unsuccessful efforts by the Academy to obtain information from her regarding her prognosis, Ms O’Brien was dismissed for medical incapacity with effect from 31 January 2013.
At the internal appeal, Ms O’Brien presented a Fit Note from her GP stating she was fit to return to work and a letter from a psychologist suggesting that she would make a full recovery in the near future. The appeal panel found the evidence presented to be unclear and contradictory and therefore upheld the dismissal. Ms O’Brien brought Employment Tribunal proceedings, principally for unfair dismissal and disability discrimination.
The Court of Appeal (“CA”) upheld the Employment Tribunal’s decision that the dismissal was both unfair and unlawful discrimination.
The CA held that it had been unreasonable for the Academy to have disregarded the medical evidence put forward at the appeal hearing. Given that the employee had been absent for 14 months, it was unreasonable of the Academy not to wait a few more months to obtain its own medical evidence in the light of the medical evidence produced by Ms O’Brien.
In coming to that conclusion, the CA stated that the severity of the impact of the employee’s continuing absence will be highly relevant in determining how long an employer would be required to wait before being able to dismiss fairly. Here, the Academy had provided no evidence of the impact Ms O’Brien’s continued absence would have on the school and so, having coped with the absence for 14 months, it could be expected to cope for a little longer to establish whether she could return.
Employers are entitled to dismiss fairly for long term sickness absence; they do not have to wait forever for an employee to recover. However, in this case, despite an absence of 14 months, lack of cooperation by the employee about providing medical evidence and a last minute report which was unclear, the dismissal was unjustified. Critically, the employer had not considered the impact of the continued absence on the school or sought its own medical evidence.
When considering dismissing for long term absence, employers should consider and document the severity of the impact of the continuing absence. Further, employers must carefully review all medical evidence even if it is produced late in the day and is less than clear. Tribunals expect employers to wait a bit longer to get a clear picture of the medical prognosis, particularly where the impact of the absence is not severe.