In O’Brien -v- Bolton St Catherine’s Academy the Court of Appeal upheld a tribunal’s decision that the dismissal of a teacher who was on long-term sickness leave was unfair and amounted to disability discrimination.

Ms O’Brien was the director of learning for information technology at an academy school. She had been assaulted by a student, resulting in her being absent with stress for over a year. The school had requested information about her prognosis and likely return to work. Ms O’Brien suggested that they contact her GP, but the GP simply directed the school back to her. Given the uncertain prognosis, Ms O’Brien was dismissed on the grounds of capability. At her internal appeal, she produced new medical evidence that she was fit to return to work, but the appeal panel found this evidence to be unclear and contradictory and rejected her appeal against dismissal.

Upholding the tribunal’s ‘borderline’ decision, the Court of Appeal found that the dismissal was unfair and amounted to discrimination arising from disability. 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. The Court of Appeal’s decision offers a number of lessons for employers dealing with the thorny issue of dismissal for long-term sickness absence:

  • the employer must provide evidence of the impact that an employee’s continued absence is having on the organisation (e.g. the additional cost of cover staff and how the duties have been reallocated to colleagues);
  • employers should not ignore medical evidence regarding fitness for work (even if it is produced late, is dubious or contradictory). Instead, the prognosis should be reviewed by an employer’s own occupational health or external medical advisers;
  • employers are not expected to wait forever for an employee on long-term sick leave to recover and return to work, but the employer must be able to demonstrate why it was necessary to dismiss at that point in time and why they cannot be expected to wait a little longer; and
  • although different legal tests apply to unfair dismissal and disability discrimination claims, there is no real distinction in the application of the two tests in the context of long-term sickness dismissals and the Court of Appeal doubted whether the two tests should lead to different results in this context.