Legally-speaking O’Brien – v – Bolton St Catherine’s Academy as reported last week is mostly about how much overlap there is between fairness for unfair dismissal purposes and justification in disability discrimination terms (in brief, very substantial). It is also a fine illustration of how hard it is to overturn an Employment Tribunal judgement on appeal – both the EAT and the Court of Appeal agree that as a matter of good practice and common sense the wrong outcome was reached at the ET, but as they could not show that its decision was legally wrong as opposed to just ordinarily wrong, that outcome could not be disturbed. Most importantly for present purposes, however, O’Brien also contains a number of potential pointers for employers considering a dismissal on grounds of long-term sickness.

In outline, Ms O’Brien was a Head of Department at the Academy. She was assaulted by a pupil there, became ill largely because of her perception that she was not adequately supported by the Academy afterwards and went off sick. The Employment Tribunal found that, for whatever reason, both she and her GP had been much less helpful than her employer had a right to expect in relation to evidencing the nature of her illness and the prognosis for a successful return. Some 17 months after she went off, with no sign of any return on the horizon, Ms O’Brien was dismissed on sickness grounds.

At her appeal, however, she produced a doctor’s note confirming without details that she was now fit to work and also some evidence that she had been recommended, and maybe undertaken, a new course of treatment. The Academy did not buy any of this – it was all too little, too late – and rejected her appeal.

The Employment Tribunal found the dismissal to be both unfair and disability discrimination. In particular:

  • The Academy had not considered properly at the time (or evidenced to the ET) the adverse impact of Ms O’Brien’s absence in terms of extra cost, burden on others, administrative disruption or prejudice to teaching standards. Even though you might think (as did both the EAT and the Court of Appeal) that this would be too obvious to need mention for a Head of Department away for 17 months, the ET said that the hoop still needed to be gone through.
  • While the enormous scepticism with which the Academy greeted Ms O’Brien’s last minute and largely unsupported assertion of fitness was fully understandable, both unfair dismissal and disability principles required that it should have checked this with its own OH or external medical advisers before dismissing it out of hand.
  • The Academy had not shown that it was necessary to dismiss at that point in time. If there were a prospect, even a faint one, that Ms O’Brien might soon be fit to return in the near future, the Academy needed some good reason why it could not have given it a go – after so long, essentially, how much further harm would have been done by another two or three months while she sought to reintegrate herself?

Lessons for employers

This is a very unattractive decision for employers, seeming to impose a standard well above whether the dismissal was within the range of reasonable responses. There are two ways you can react to it:

  • Although the points picked on by the ET might well seem like going above and beyond, in fact none of them would have been very difficult to do and the dismissal would then have been beyond reproach – a question of being seen to consider those factors as much as necessarily doing anything about them.
  • Or slightly less safely, share the same fabulously trenchant views as the dissenting Judge in the Court of Appeal, i.e. the requirement for express evidence of harm arising from the absence was “unreal”, Ms O’Brien’s evidence of fitness was “demonstrably half-baked”, that her GP’s note “evidenced no real engagement whatsoever” with her psychological issues and that overall the dismissal was “unacceptably purist”.

P.S. Hamstrung by its inability to overturn the ET’s decision on a valid question of law, the Court of Appeal nonetheless claimed the last word. It urged the parties to settle and reminded Ms O’Brien discreetly but unmistakeably that if she didn’t, an ET deciding compensation would bear in mind whether she was actually now fit to work and whether going through the hoops at 1-3 above would have made any practical difference. If not in either case, was the clear message, she might come out with little or nothing. Even if you do go down on issues of pure process like this, therefore, the financial penalty may be very limited.