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When employers must wait “a little longer”: lessons from the Court of Appeal on long-term sickness dismissals

In O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145, the Court of Appeal gave some useful lessons for employers (and employment lawyers) who are considering the thorny area of when it is reasonable and proportionate to dismiss an employee on long-term sickness whose prognosis is uncertain.

Background

Ms O’Brien, Head of Department at Bolton St Catherine’s Academy, had been on sick leave for over a year when her employment was terminated on the grounds of capability. She had been assaulted by a student, resulting in her long term absence for stress.  A significant factor in the decision to dismiss was Ms O’Brien’s uncertain prognosis regarding a return to work.  Her employer had requested information about her prognosis, but did not receive a satisfactory response. Ms O’Brien was evasive, suggesting that her GP be contacted but the GP simply directed the employer back to Ms O’Brien for information. At her internal appeal hearing, Ms O’Brien produced a Fit Note from her GP stating that she was now fit to return to work. She also produced a letter from a psychologist suggesting that she would make a full recovery following a course of treatment. The appeal panel found this evidence to be unclear and contradictory and rejected her appeal against dismissal.

Upholding the employment tribunal’s “borderline” decision, which had been overturned by the EAT, the Court of Appeal found that the dismissal was unfair and amounted to discrimination arising from disability within the meaning of section 15 of the Equality Act 2010 (EqA 2010). The tribunal was entitled to find in the circumstances that it was unreasonable and discriminatory of the employer not to have waited a little longer to establish whether Ms O’Brien was able to return to work in the near future. Subject to settlement, the case will now return to the Employment Tribunal for a remedy hearing.

Lessons for employers from the Court of Appeal

  • The Court of Appeal’s judgment made clear that, no matter how obvious it seems, employers must provide evidence on the impact that an employee’s continued absence is having on the organisation. In some cases a general statement will suffice but in others it will be less apparent and so the employer will need to give more specific evidence on the difficulty caused by the absence. Evidence such as who has been brought in to cover the work, the additional cost to the business and how the duties have been reallocated to colleagues will be relevant. Including this information in the dismissal letter is a good way to present this evidence and to show that the impact of the absence has been considered by the dismissing officer.
  • Employers will be familiar with the need to rely on up to date medical evidence, however, this case highlights the danger of ignoring evidence regarding fitness for work where the new information is produced at an internal appeal. Medical evidence must not be ignored and, if new evidence is produced, further investigation should be made by an employer’s own occupational health or external medical advisers. This requirement applies regardless of whether the new medical evidence appears dubious, contradictory or is presented at the last minute, as it was in this case.
  • Employers are not expected to wait forever for an employee on long-term sick leave to recover and return to work and it is not necessarily unfair for an employer to dismiss an employee who has been absent for over a year. However, employers must be able to demonstrate why it was necessary to dismiss at that point in time. In this case the school had not demonstrated why they could not wait a little longer while they investigated the new medical evidence.
  • Although different legal tests apply in relation to defending unfair dismissal claims and disability discrimination claims, there is no real distinction in the application of the two tests in the context of long term sickness dismissals. Section 15 of the EqA 2010 considers whether the dismissal was proportionate and Section 98(4) of the Employment Rights Act 1996 considers whether dismissal was reasonable. The Court of Appeal doubted very much whether the two tests should lead to different results in this context. Employers whose response is found to be disproportionate and fails section 15 are likely to be held to have acted unreasonably in dismissing the employee. For both tests, employers should consider factors such as the impact of the absence, the reasonableness of waiting longer for the employee to return, the duration of the absence to date and the evidence when the employee may return.
Harbottle & Lewis Marian Derham Sarah Verrecchia

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