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Court of Appeal gives guidance on dismissal following long-term sickness absence

Court of Appeal gives guidance on dismissal following long-term sickness absence

O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145

Ms O’Brien was a teacher, she was assaulted at work by a pupil in April 2011. She continued to work but ultimately went on sick leave in December 2011 due to the assault and never returned to work.

In January 2013, the decision was made to dismiss her on the basis that there was no evidence she was fit to work and there was no clear indication of when she would become fit. She appealed against this decision and presented new evidence that she was fit to work. The appeal panel upheld the decision to dismiss.

She made several claims, including unfair dismissal and discrimination arising from disability under the Equality Act. She was successful in these latter two claims at the Employment Tribunal, but the respondent appealed successful to the Employment Appeal Tribunal. The Court of Appeal disagreed with the EAT and found it was correct for the Employment Tribunal to find that Ms O’Brien had been unfairly dismissed and that her dismissal had been discriminatory.

Two key points in the Court of Appeal’s reasoning were: (a) it was unreasonable for the appeal panel to ignore the new evidence (even though the appeal was expressly described as a review of the original decision, rather than a re-hearing); and (b) given the new evidence that Ms O’Brien was fit to work, it was unreasonable for her employer not to wait the relatively brief time it would take to get independent medical evidence. This was particularly true given that measures were already in place to accommodate Ms O’Brien’s absence so the ‘damage’ in terms of cost to the school had already been done.

The Court of Appeal made clear that this was very much a borderline case given the length of absence and stated that employers are entitled to finality in cases of long term absence. Cases such as these turn on their facts and can be difficult to navigate in practice. However, there are some key practical points you can take to lessen risk.

  • Ensuring occupational health become involved early in the absence;
  • Ensuring regular communication with the employee during their absence;
  • Most importantly, when considering whether to dismiss an employee on long term sick leave, independent medical evidence is just what the doctor ordered.