In O'Brien v. Bolton St. Catherine's Academy [2017] EWCA Civ 145, the Court of Appeal agreed with the tribunal's decision at first instance that a teacher had been unfairly dismissed after more than a year's sickness absence, even though there was no immediate prospect of her returning to work. This decision was reached on the basis that the school had failed to properly consider medical evidence presented at the internal appeal hearing. The decision also provides guidance on the issues an employer should consider in long-term sickness absence cases.

The facts

Mrs O'Brien, a teacher and head of department at Bolton St. Catherine's Academy (the School), was assaulted by a pupil whilst at work. Mrs O'Brien initially returned to work following the incident but was shaken by it and felt that the School had not done enough to support her. Mrs O'Brien subsequently went on long-term sick leave and was diagnosed with stress at work and later with depression, anxiety and post-traumatic stress disorder.

During Mrs O'Brien's absence the School obtained two medical reports (in April and August 2012) which did not give any indication of a return to work date. After Mrs O'Brien had been absent for around nine months, the School invited her to a meeting to discuss her continued absence, and the medical evidence. Mrs O'Brien did not attend the meeting, instead saying she was too upset to do so. The School asked her to provide written information instead, including an indication of when she might be in a position to return to work. Mrs O'Brien was reluctant to provide the information requested, although did eventually inform the School that it was at that time "impossible" to predict when she might be in a position to return to work. Mrs O'Brien suggested that the School contact her GP for further information, which they did. The GP replied to say that the School should speak to Mrs O'Brien.

Unsurprisingly, the School became a bit frustrated about this and began its formal capability process. A meeting was held with Mrs O'Brien and her trade union representative at which Mrs O'Brien stated that she was receiving treatment for post-traumatic stress disorder, which would take place over seven sessions, and that she hoped to return to work by the end of April. However, Mrs O'Brien said that her therapist was not able to give a view on her return to work until Mrs O'Brien had completed the therapy. For its part, the panel at the capability hearing did not provide any information about the effect of Mrs O'Brien absence on the School. Following the capability meeting, Mrs O'Brien was dismissed. In reaching the decision to dismiss the School considered:

  1. the length of time off work to date with no substantive improvement in her condition;
  2. that there was no prognosis indicating a likely return to work in the near future; and
  3. its concern that the incident that led to Mrs O'Brien's condition might occur again in the future and (based on her comments) Mrs O'Brien may not be able to deal with this.

Mrs O'Brien appealed the decision to dismiss her. At the appeal hearing Mrs O'Brien presented a fit note which stated that she was fit for work. Mrs O'Brien also presented a letter from a psychologist stating that she could be expected to return to her previous self within 10 to 12 sessions of treatment. Mrs O'Brien told the appeal panel that she had now completed the treatment and was fit to return to work. The appeal panel was not satisfied that the evidence provided established that Mrs O'Brien was fit to return to work and upheld the decision to dismiss, following which Mrs O'Brien raised claims for unfair dismissal and discrimination arising from a disability.

At first instance, Mrs O'Brien's claims were successful, but the EAT subsequently upheld the School's appeal against the tribunal's decision. Mrs O'Brien appealed to the Court of Appeal.

The decision

The Court of Appeal, by a majority, preferred the employment tribunal's finding, that Mrs O'Brien's dismissal had been unfair and discriminatory. The Court of Appeal had accepted that Mrs O'Brien had been absent for a substantial length of time, and that there was no clear evidence as to when she would be fit to return to work. With that in mind, the Court noted that this was a borderline case. However, the Court of Appeal was critical of the School's failure to provide adequate evidence about the impact of Mrs O'Brien's absence on the School and its pupils. It also found that the School could not be expected to continue to "wait and see" indefinitely, but that it should have at least waited to get its own up-to-date medical evidence following the information presented by Mrs O'Brien at the appeal hearing.

What is the practical impact of this for employers?

This decision may seem harsh on the School given the length of Mrs O'Brien's absence, her lack of cooperation with the process, the evidence available at the time of dismissal, and the fact that the medical evidence presented at the internal appeal was not conclusive. However, the case highlights the importance of considering medical evidence at all stages when dealing with dismissals following long-term sickness absence. Just because medical evidence is not provided until a later stage, does not mean that it does not require full consideration. Broadly speaking, when considering potential dismissals following long-term sickness absence, an employer should consider the adverse impact of the employee's absence on the business and carry out an evidential assessment of any disruption, including consideration of how this has been or might otherwise be dealt with. In a situation where an employee says at a late stage that they are fit to return to work, if the employer is not able to wait for their return they should consider the reasons for this and be prepared to justify them. This should be discussed with the employee at the capability hearing, and summarised in the dismissal letter. Employers should take into account new evidence which is put forward at an internal appeal, including medical evidence, and determine on the basis of this whether they might need to get their own further medical evidence before reaching or upholding the decision to dismiss.