Case update (1): Sickness absence – Long term illness & dismissal

Summary: When can an employer fairly dismiss an employee who has been absent from work due to long-term illness?

The Court of Appeal has provided helpful advice in O’Brien v Bolton St Catherine’s Academy available here.

Facts:  The employee, Ms O’Brien, was a teacher and head of department at the employer. She was assaulted by a pupil at the school and she suffered an acute stress reaction, leaving her unable to return to work. The school asked her for clarification as to when she could be expected to return to work and what adjustments could be made to support her. Ms O’Brien provided a written questionnaire which referred the school to her GP in relation to key questions such as when she could be expected to return. The GP was not able to confidently say when she might be able to resume her employment with the school.

Ms O’Brien was subsequently dismissed for capability reasons after a formal medical incapacity hearing. Ms O’Brien appealed and during the appeal hearing Ms O’Brien presented 2 new documents:

• statement of fitness for work dated the previous day certifying her as fit to work; and
• letter from a psychologist which stated that, in her opinion, if Ms O’Brien underwent an appropriate course of treatment, she would be well enough to return to work.

Ms O’Brien stated that she had undergone the relevant course of treatment and was now well enough to return. The appeal panel were concerned that there was no corroborative evidence to support Ms O’Brien’s assertion that she had completed her treatment and believed that the fit note was an attempt by Ms O’Brien to return to work before she was ready. They decided that the School had waited long enough, that waiting longer would place too great a burden on the staff and pupils of the School, and therefore upheld the decision to dismiss.

Ms O’Brien brought Tribunal claims for unfair dismissal and disability discrimination.  The Tribunal upheld the claims.  In respect of disability discrimination, it found that the employer had failed to show that the dismissal was a proportionate means of achieving its legitimate aims of “the efficient running of the school, the reduction of costs and the need to provide a good standard of teaching”. Primarily because the School had adduced no evidence of this adverse impact.  It would have been reasonable for the school to ‘wait a little longer’ and should have sought further evidence in relation to the last-minute fit note they received as waiting to clarify this would have been a less discriminatory means of achieving their aim.  The Tribunal also concluded the dismissal was unfair on the basis it was discriminatory.

The EAT upheld the employer’s appeal.  It took a more sympathetic approach to the employer and held that the impact of a senior employee being on long-term sickness absence was obvious and specific evidence on this did not need to be provided.

The Court of Appeal, however, reinstated the decision of the Tribunal. The Court agreed with the Tribunal’s reasoning that the school should have ‘waited a little longer’. It was particularly mindful that this was not a case where Ms O’Brien was predicting that she would be fit soon, rather it was a case where, by the time of the appeal (which was the appropriate time to judge the reasonableness of the dismissal) she was saying she was already fit to return and therefore the requirement to ‘wait a little longer’ was only so the school could obtain evidence to confirm, or otherwise, that this was the case.

The Court of Appeal gave the following helpful guidance on the issue of employees off on long-term sickness absence:

• Where an employee has been on sick leave for more than 12 months and there is little certainty as to when they may return, a dismissal will not necessarily be unfair – “there comes a time when an employer is entitled to some finality”;
• A significant factor will be how much the employee’s continued absence will impact the employer. Evidence of this impact must be provided, even if the impact is so obvious that only a general statement is required; and
• Where there is an appeal hearing and additional information is given, this must be considered properly, as the decision to dismiss must be fair at the time of the appeal.

Implications:  This case provides a useful reminder of the factors an employer should take into account when considering dismissal in cases of long-term sickness absence. In  particular it highlights how important it is for employers to provide evidence of the impact the absence is having on other staff and the organisation as a whole.  Also, employers should note that even if dismissal would be fair at the time of a dismissal hearing, if new evidence is produced at appeal this must be properly considered and acted upon for dismissal to remain fair.