What factors should be taken into account before dismissing an employee following long-term sickness absence? In O’Brien v Bolton St Catherine’s Academy the Court of Appeal provides guidance on a number of issues to consider in long-term sickness absence cases. Where medical evidence on a return to work date is borderline then an employer should do two things: obtain up to date medical evidence and explore the impact of the claimant’s continuing absence on their organisation. In addition if new medical evidence is submitted at the appeal hearing, where the employee says she is fit to return to work straight away, then it is very difficult to reject that information without at least instructing further medical reports.

Facts

The claimant, a teacher who was head of the ICT department was assaulted by a pupil at work. Although the claimant returned to work after this incident, she was very shaken by it and felt that the school did not do enough to support her which subsequently led to a prolonged absence for stress in December 2011. During this time she attended CBT counselling and 2 medical reports were obtained by her employer in April and August. At this stage there was no indication of a return to work date.

Prior to a meeting scheduled for November 2012 the school then asked the claimant to advise when she would be fit to return to work. The claimant at first refused to provide this information but eventually advised that it was “impossible” at this point in time for her to answer when she could return to work. The school then wrote to her GP, and although the claimant at first refused to provide consent, her GP later replied explaining that he was unable to advise when a return could take place and the school should speak to the claimant directly.

The school then instigated their capability process and invited the claimant to attend a meeting where she was dismissed. The tribunal ruled that her dismissal was on the basis of:

  • The length of time off work to date with no substantive progress in her condition
  • No prognosis that indicates a return to work likely in the near term
  • Concern that the incidents that precipitated her condition could occur again in the school environment

During the capability hearing on 28 January 2013 the claimant explained that she had recently been referred to a therapist who was treating her for PTSD, further sessions were planned and she hoped to return to work on a phased basis by April 2013, but the school dismissed her regardless.

Ms O’Brien appealed against her dismissal. At the appeal hearing on 10th April 2013 she submitted a fit note signed by her GP dated 9 April 2013 saying she was fit to work on an ongoing basis, and a letter from a psychologist from February 2013 recommending 10-12 further sessions after which she would expect the claimant to return to her pre-trauma functioning. The appeal panel concluded that the fresh evidence did not establish that she was fit to return to work and upheld her dismissal.

Claims were then raised for unfair dismissal and discrimination arising from a disability. Ms O’Brien was successful before the tribunal, a finding which was reversed at the EAT and reversed again by the Court of Appeal (CoA) who restored the tribunal’s position. In a majority decision, the CoA explained that although this was a borderline case (because of the length of the absence and the unsatisfactory evidence about when she would be fit to return to work), the essential point was that by the time of the appeal hearing there was some evidence “albeit not wholly unsatisfactory” that she was now fit to return to work.

Comment

Most employers are aware of the need to rely on up to date medical evidence at the dismissal hearing. Simply because the new medical evidence did not become available until the appeal hearing does not mean that it can be discounted.

While the CoA acknowledged different legal tests applied in relation to the defence of a claim for unfair dismissal and disability discrimination, (with objective justification being regarded as a more stringent test) the CoA explained that there is no real distinction in the practical application of the legal tests. The reasonableness element of the dismissal, and the justification aspect of a discrimination claim involve similar issues. The following factors should be considered in both: the duration of the absence to date, the evidence when the employee may return, the reasonableness of waiting a little longer and the impact of their continuing absence.

Employers are not expected to wait forever for an employee to return to work after a long absence, it is reasonable that there is a degree of finality in dealing with absence. In terms of practical advice for employers faced with this situation an employer should:

  • identify the disruption to the business as a result of the long-term absence;
  • carry out some form of evidence based assessment of any disruption, for example who has been brought in to cover the work, and how the duties have been reallocated to colleagues because of the absence; and
  • consider all medical evidence even if this is submitted at the appeal stage.