In O’Brien v Bolton St Catherine’s Academy [2017] EWCA CIV145 the Court of Appeal gave some useful guidance to employers facing the question of when it becomes reasonable to dismiss an employee on long term sickness whose prospects of recovery are possible, but the timing of the recovery is unclear.
This is an issue that the Employment Team are frequently asked to advise on.
Background
Ms O’Brien was employed as a head of department at Bolton St Catherine’s academy. She had been on sick leave for over a year when her employment was terminated on the grounds of capability related to her sickness absence. She had suffered an assault by a student whilst at work which triggered her stress related absence. The employer said that a significant factor in its decision to dismiss her was the uncertain prognosis regarding her ability to return to work. Her employer sought information from Ms O’Brien and her GP in relation to her prognosis which the employer did not regard as helpful. 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. But she also produced a letter from a psychologist suggesting that she would make a full recovery following a course of treatment. The employer’s appeal panel found this evidence to be unclear and contradictory and therefore chose to reject her appeal against dismissal.
The Employment Tribunal felt that this was an example of a “border line” case in which it could not be said that this employer had enough evidence to justify the decision to dismiss at that point in time, particularly when the matter came before the appeals panel for a final determination.
The finding of unfair dismissal was overturned by the Employment Appeal Tribunal but when the case came before the Court of Appeal it found that the dismissal was both unfair and amounting to discrimination arising from disability within the meaning of section 15 of the Equality Act 2010 whereby A discriminates against B if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The Court of Appeal were satisfied that the Employment Tribunal had been entitled to find that it was both unreasonable and discriminatory of this employer not to have waited a little longer to establish whether Ms O’Brien was able to return to work in the near future.
Lessons for employers from this decision
- The Court of Appeal Judgment made clear that employers must provide evidence on the impact that an employee’s continued absence is having on the organisation to be able to justify why a dismissal has become appropriate at a particular point where it appears that the employee does have a prospect of recovery, but there is uncertainty as to when this will occur. Evidence such as who has been brought into 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 absence has been considered by the dismissing officer.
- The 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 adviser. This requirement applies regardless of whether the new medical evidence appears dubious, contradictory, or is presented at the last minute.
- Employers are not expected to wait forever for an employee on sick leave to recover and return to work and it may be fair for an employer to dismiss an employee who has been absent for over a year. However in this case the employer had failed to demonstrate why they could not wait a little longer while they investigated the new, apparently contradictory, 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 Equality Act 2010 considers whether the dismissal was proportionate and section 98(4) of the Employment Rights Act 1996 considers whether the dismissal was reasonable. In 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 of when the employee may return.
For any advice in relation to the management of sickness absence contact Julie Dalzell, or another member of the employment team.
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