The recent case of O’Brien v Bolton St Catherine’s Academy provides a useful reminder of the procedural complexities surrounding the dismissal of an employee on the grounds of medical incapacity.

Mrs O’Brien had been off work on sick leave for more than 12 months when her employment was terminated. During her absence her employer had sought to arrange to meet with Mrs O’Brien, obtained two occupational health reports and contacted her GP. The decision was ultimately reached, on the basis of the available information, that there was nothing to indicate that Mrs O’Brien would be likely to return to work in the near future.

However, at the internal appeal hearing, Mrs O’Brien produced a ‘Fit Note’ from her GP confirming that she was fit for work and a letter from her psychologist suggesting that she was expected to make a full recovery following a specific course of treatment. These documents came as something of a surprise and contradicted her employer’s understanding of the situation. Mrs O’Brien’s appeal against dismissal was rejected and it was found that the timing of her return to work remained uncertain.

The Court of Appeal held that Mrs O’Brien’s dismissal was both unfair and discriminatory. Her employer had failed to provide any evidence of the adverse impact Mrs O’Brien’s absence was having and, in light of the new evidence that she provided at the appeal hearing, it was found that it should have waited a ‘little longer’. Exactly how much longer is unclear, but employers should be left in no doubt that where new positive information is produced regarding an employee’s fitness for work, this cannot be ignored even it initially appears unconvincing and regardless of the timing.