Ms O’Brien was a Director of Learning ICT at Bolton St Catherine’s Academy (the Academy). In March 2011, she was assaulted by a pupil at the Academy. Ms O’Brien shortly returned to work however; she felt unsafe and was unhappy with the Academy’s response to the assault. In December 2011, Ms O’Brien went off sick suffering from stress at work and was subsequently diagnosed with anxiety, depression and post-traumatic stress disorder.
After being absent from work for over a year, the Academy dismissed Ms O’Brien for medical incapacity because at the time, there was no evidence to suggest that she would be able to return to work in the near future.
The Head presented the case for dismissal using a summary of Ms O’Brien’s medical history and available evidence but did not give any detail about the effect of her continued absence on the Academy. The dismissal was upheld on appeal despite Ms O’Brien producing a fit note which stated that she could return to work imminently.
Ms O’Brien then brought a claim of discrimination arising from disability and unfair dismissal to the Employment Tribunal and was successful in the first instance. This decision was, however, overturned by the Employment Appeal Tribunal who concluded that the Academy should not have had to wait any longer for Ms O’Brien to return to work. Ms O’Brien sought to overturn this decision and took the matter to the Court of Appeal.
The Court of Appeal’s decision
The Court of Appeal found that the Employment Tribunal had been entitled to conclude the dismissal was both unfair and discrimination arising from disability. The Court agreed with the Tribunal’s reasoning that the Academy should have ‘waited a little longer’ given the evidence produced (including the fit note) at the internal appeal hearing.
The Court of Appeal did however describe the case as ‘near the borderline’ due to the length of absence, and the nature of the evidence of when Ms O’Brien would be fit to return to work.
According to the Court of Appeal, in order to justify a dismissal, an employer should consider and provide evidence of the impact of the employee’s prolonged absence on its business. The Academy failed to provide any evidence in this regard and did not wait a further short period of time to consider the new evidence produced by Ms O’Brien.
It is important to note that this was not a case where an employer was being asked to ‘wait a little longer’ because the employee said that they ‘might’ be fit to return soon, rather, the Academy simply refused to accept Ms O’Brien’s evidence that she was fit for work immediately.
Practical implications for employers
The Court of Appeal made it very clear that employers are not expected to wait forever for an employee to recover from illness and dismissal is sometimes a valid step when return to work is not imminent. However, considering this case, employers should put safeguarding methods in place such as keeping a written record of any disruption caused to the company as a result of an employee’s absence. Employers should also carefully review all medical evidence produced during an employee’s absence period, including any new evidence which may come to light during the dismissal process.
If you would like to discuss sick leave, dismissal and the implications for your business, please contact a member of the Employment Team.