Many employers will at some stage be faced with the issue of an employee who is on long-term sickness absence. This can be a difficult issue to deal with, both legally and from a human point of view. The Court of Appeal in the recent case of O’Brien v Bolton St Catherine’s Academy (2017) gave some guidance for employers who were considering dismissing an employee on long-term sickness absence.
The facts of the case are fairly straightforward. Mrs O’Brien was a teacher and a head of department at the school. She was attacked by a pupil but not seriously physically injured. She took a short time off work, and then returned. However, she felt that the school had not done enough to deal with aggressive pupils and also felt unsafe going into certain parts of the school. She then went off with stress.
After Mrs O’Brien had been absent for more than a year, the school asked for clarification from her as to when she might be fit to return, and what adjustments she felt were necessary to facilitate her return. Mrs O’Brien was asked to attend a meeting but refused, saying she felt the meeting would upset her. The school then asked her to make written submissions by sending her a questionnaire, which she did, but in answer to key questions as to when she might be fit to return or what adjustments she felt were required, she simply referred the school to her GP. The school then wrote to the GP, who was unable to give any real indication of a likely return date or of any necessary adjustments.
The school then started to go down a sickness and incapacity route, which ultimately led to Mrs O’Brien’s dismissal. Dismissing someone on the grounds of ill health is a potentially fair reason for dismissal, but in order for the dismissal to be fair, the employer will have to show that it has followed a fair procedure and that dismissal was within the band of reasonable responses for an employer to take. For example, if an employee has been off for a long period but is about to return, then a dismissal is unlikely to be fair as it would not normally be reasonable for an employer to dismiss an employee who is imminently going to return to work.
Mrs O’Brien appealed against her dismissal, and at the appeal produced a fit note indicating that a return to work would be imminent. The panel hearing the appeal were sceptical of this, and felt it was inconsistent with the previous medical advice. They therefore rejected the appeal. Mrs O’Brien brought claims in the Employment Tribunal alleging unfair dismissal and discrimination arising from a disability. She was successful at Tribunal, and the school appealed to the Employment Appeal Tribunal (EAT). The EAT overturned the decision, stating that the Tribunal had gone too far in expecting the school to wait any longer for her return. Mrs O’Brien appealed to the Court of Appeal.
The Court of Appeal overturned the EAT’s decision and reinstated the original Tribunal decision. In doing so they gave some useful guidance for employers managing these types of situations. The Court acknowledged that there was a balance to be struck between the employer’s need for the employee to return to work and the employee’s right not to be unfairly dismissed, and acknowledged that where there was long term absence and no certainty as to when an employee is likely to be able to return, then the impact on the employer’s organisation was an important factor. In this case, the school had not produced any evidence of the impact of Mrs O’Brien’s absence, and the Court were critical of this. They were also critical of the appeal panel’s decision not to seek further clarification of the medical position when they were presented with a fit note stating that a return to work was likely to be imminent.
In many ways this case does not say anything new. It has always been incumbent upon an employer to show that it has acted reasonably, and part of that will be making a decision based on up to date medical advice. What the case does suggest is that employers would be well advised to keep a note of the impact of the employee’s absence on the organisation and on their colleagues. Sometimes, particularly with a small organisation, the impact will be self-evident, but having examples to illustrate the impact will always make the argument easier.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).