When should an employer "wait a little longer" before dismissing an employee who is off sick? An employee-friendly decision in O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145 CA, a long-term sickness absence case, offers useful guidance for employers in a similar situation.

Facts

Georgina O'Brien was the Director of ICT at the Bolton St Catherine's Academy (the School). In December 2011 she took sickness absence as a result of suffering from stress, anxiety and depression, after having been assaulted by a pupil in March 2011. Ms O'Brien's sickness absence lasted for more than a year and the School commenced a formal capability process in January 2013, after Ms O'Brien's own and her GP's responses to its enquiries had become limited and somewhat unhelpful.

At the hearing the medical information Ms O'Brien provided was in parts confusing, with treatment for PTSD being recommended, without a clear diagnosis of PTSD having been given. She expressed the hope of being ready to return by the end of April 2013 but this was not backed up by the evidence from her medical advisors that was available to the governor panel. Ultimately, the panel decided to terminate her employment as no clear date for return could be established from the medical evidence, after an already extensive period of absence.

Ms O'Brien appealed and by the time of her appeal in April 2013, had experienced (she reported) a great improvement in her health, having had treatment for PTSD that she said meant she would soon be ready to return to work. This view was not, however, supported by any contemporaneous medical evidence. Ms O'Brien produced a GP certificate simply marking her as fit to work and a letter from a psychologist dated February 2013, stating that treatment for PTSD would enable her to return to work, but which did not state whether or not any such treatment had in fact taken place.

The appeal panel decided to uphold the decision to terminate Ms O'Brien's employment, as it was unconvinced on the evidence available that she was medically ready to return, or that she was sufficiently mentally robust to cope if similar circumstances arose again with a pupil (which was a possibility, as the School had a policy of not automatically excluding violent pupils).

Ms O'Brien claimed unfair dismissal, and unjustified discrimination as a result of a consequence arising from her disability, amongst other claims.

Employment tribunal decision

The employment tribunal (ET) found that Ms O'Brien had been unfairly dismissed, as the School should have waited "a little longer" and sought to receive reliable medical evidence on her mental state in April 2013, given the positive view regarding a return that Ms O'Brien herself had presented.

The ET also found that the School had discriminated against Ms O'Brien for a reason arising from a consequence of her disability, ie terminating her employment due to her lengthy sickness absence. This form of discrimination is potentially justifiable in law if the employer can show that its behaviour was a proportionate way of achieving a legitimate aim. The School argued that issues such as cost, needing to provide good quality teaching (Ms O'Brien was head of an important department) and being able to run the School efficiently, all formed part of its justification for this discrimination, but the ET found that this was not proportionate, as it had not seen any evidence of the alleged adverse impact on the School. This discrimination in turn fed into the unfairness of the dismissal, the ET held.

Employment Appeal Tribunal decision

The School appealed and its appeal was upheld by the Employment Appeal Tribunal (EAT), which seemed more sympathetic with the obvious adverse effects on the School of the long-term absence of a department head. The case was remitted by the EAT back to the ET for a fresh hearing, as opposed to being dismissed. Ms O'Brien appealed this decision.

Court of Appeal decision

The Court of Appeal found in favour of Ms O'Brien. It concluded, like the ET, that the School should have "waited a little longer" before taking the decision to terminate, given the fact that there was insufficient information available in terms of the actual medical position and prognosis, when the employee herself was indicating she was, finally, ready to return.

Lord Justice Underhill upheld Ms O'Brien's appeal and reinstated the ET's decision so that her claims of unfair dismissal and discrimination succeeded. He also set out some useful guidance for employers in a similar situation, showing how a dismissal in such circumstances could be effected fairly and without discrimination. This can be summarised as follows:

  • Evidence of the disruptive or expensive effect of the employee's absence on the employer should be produced throughout the capability process and clearly taken into account if and when decisions to terminate are made.
  • Where appeals are heard, any new evidence should be taken into account and the employee's position assessed on the basis of the evidence available at the date of the appeal hearing, not at the date of the earlier termination decision.
  • Despite the decision in this case, Lord Justice Underhill confirmed that where the evidence an employer has is sufficiently fulsome and complete, it will not always be necessary for the employer to wait before terminating an employee on long-term sickness absence. Employers will, in the right circumstances, be entitled to finality in respect of employees who have no clear return dates indicated in their medical evidence.

Comment

While the decision itself is something of a bitter pill for any employer who has endured a lengthy period of sickness absence from a senior staff member before commencing a detailed capability process, the advice set down by Lord Justice Underhill is welcome.

The decision in this case is a cautionary tale to remind employers to keep an open mind all the way to the end of a capability process, in order to ensure that mistakes are not made at the final juncture. If information is insufficient or employee assertions are seemingly unreliable, the best approach would be to put a final decision on pause while corroboration and clarification are sought.