The claimant in Bolton St Catherine's Academy v O'Brien, director of Learning ICT, was assaulted by a pupil at the school where she worked, suffering injury and an acute stress reaction (a disability). She had been off sick for 14 months when, as there was no immediate prospect of return, her employer decided to terminate her employment.

The Tribunal found that the claimant had suffered discrimination arising from her disability because the employer had failed to show objective justification; in other words that the dismissal was a proportionate means of achieving what were accepted to be legitimate aims – running the school efficiently, providing a good standard of teaching and reducing cost. The employer had failed to produce evidence of the adverse impact on the school of the long term absence of the claimant; and also there was a less discriminatory means of achieving the legitimate purpose – to "wait a little longer" to establish whether she would be able to return to work in the near future.

The EAT allowed the appeal and sent the case back for a decision on whether the dismissal was justified. The Tribunal had imposed too high a standard; the employer was not necessarily obliged to provide evidence in order to establish that the dismissal was a proportionate response, it could rely on anything already available to the Tribunal. It was obvious that long term absence of a senior employee with teaching, leadership and administrative roles from a large publically funded school (which had had problems in the past) was bound to have had an adverse impact on its business. Her teaching duties had to be covered (involving additional payments to another member of staff) and her leadership, development and administrative roles had to be re-allocated to colleagues, all at a time of austerity and shortage of resources.

The length of time the employers took to decide that it was necessary to terminate the claimant's employment suggested that they had given careful consideration to the decision and there was no requirement for them to provide detailed information such as staff rotas, timesheets or detailed financial statements.

Whilst the decision is helpful to employers, clearly, as the EAT itself noted, it may well be advantageous for an employer to lead this sort of evidence itself.