Author: Hazel Oliver (Lewis Silkin LLP)
The UK’s Court of Appeal has given some useful new guidance on the vexed question of when an employer can safely dismiss an employee who is on long-term sickness absence – although not all of the judges agreed with the result.
Employers often have to grapple with the issue of when to dismiss an employee who has been absent from the workplace for a lengthy period of time. Where this is due to long-term illness, employees in the UK potentially have a claim for disability discrimination under the Equality Act 2010 as well as unfair dismissal under the Employment Rights Act 1996 if the employer gets things wrong.
Although each case turns on its own facts, it is always expected that the employer will get up-to-date medical evidence before making a final decision. The most difficult issue tends to be deciding the point at which the employer cannot be expected to wait any longer for the employee to return.
Facts of the case
Ms O’Brien was a teacher at Bolton St Catherine’s Academy. Following an assault by a pupil at the school, she became unwell with anxiety, depression and post-traumatic stress disorder. The school’s occupational health advisers were unable to give an opinion on when, if ever, she would be fit to return to work, and Ms O’Brien did not cooperate with requests for further information. The school held a formal medical incapacity hearing, following which she was dismissed.
Ms O’Brien appealed, and the hearing was held some 16 months after she first went off sick. At the hearing, she presented a statement of fitness for work from her doctor which provided no further information, together with an earlier report from a psychologist which recommended a particular course of treatment. Ms O’Brien said that she was now fit to return to work. The appeal panel nonetheless decided to uphold the dismissal decision. This was on the basis that the medical evidence was inconsistent, they believed the doctor’s fit note was an attempt by Ms O’Brien to return to work before her condition was fully treated, and they were concerned about a relapse if a similar incident happened again.
Ms O’Brien brought claims for unfair dismissal and disability discrimination. The Employment Tribunal decided that her dismissal was both unfair and discrimination arising from disability. This was primarily on the basis that the school had failed to provide adequate evidence about the adverse effect of her absence on the running of the school. The Tribunal also considered it would have been reasonable to wait a little longer in light of the new evidence she had provided at the appeal hearing. The Employment Appeal Tribunal (“EAT”) disagreed with this approach, and Ms O’Brien appealed to the Court of Appeal.
The Court of Appeal’s decision
By a majority decision, the Court of Appeal found that the Employment Tribunal had been entitled to conclude that the dismissal was both unfair and discrimination arising from disability and the EAT should not have overturned those findings.
The Court found that the lack of evidence from the school about the effect of Ms O’Brien’s absence was a relevant issue, particularly as she had produced evidence indicating that she might be fit to return. The school had already managed to cope with any difficulties caused by her absence for some 15 months and had failed to explain why it could not wait a further short period of time to consider this new evidence.
Similarly, the Court said that the fact Ms O’Brien was saying she was now actually fit to return to work was a key issue. This was not a case where the employer was being asked to wait a little longer because the employee was saying that she might be fit to return soon. Rather, the school was not accepting Ms O’Brien’s assertion that she was fit for work immediately. In this situation, it could be expected to obtain its own occupational health advice before dismissing her, including on the likelihood of a relapse.
The Employment Tribunal had taken both of these factors into account correctly in deciding that the dismissal was unfair and that the school was unable to justify the discrimination arising from disability.
Unusually, one of the three judges disagreed with this result. His opinion was that further evidence about the effect of Ms O’Brien’s absence was not needed, the school’s position was understandable in light of her failures to cooperate with requests for information, and the school could properly reject the evidence presented at the appeal hearing as it was “entirely” unsatisfactory and produced at the last minute.
The Court of Appeal’s failure to agree on the right result in this case might suggest that it is very difficult to draw any general conclusions from their decision! There is, however, some useful practical guidance on long-term absence dismissals that can be taken from the Court’s reasoning:
- It is important for employers to have clear evidence as to why it is not possible to wait any longer before dismissing an absent employee. This would include explaining what problems the absence has caused, how they have been dealt with and why this cannot be allowed to continue. Although it may seem obvious that a long-term absence will cause difficulties, the employer needs to be able to explain why dismissal at this particular point is necessary.
- Employers need to be careful about rejecting new medical evidence presented at the last moment, even if sceptical about its validity. The correct approach will often be to obtain further occupational health advice in this situation - particularly where, as in this case, the employer is rejecting the employee’s assertion that they are now fit to return to work.
- Where new evidence is presented at the appeal stage, it makes no real difference whether this is a full rehearing or simply a review of the original decision. There is often a temptation to ignore new evidence if the appeal has been set up as a review, as was the situation in this case. However, an appeal panel should always take account of new evidence, particularly where it has arisen since the original dismissal decision.
- This case should not be taken as entirely unhelpful to employers. The majority judgment stated: “The argument "give me a little more time and I am sure I will recover" is easy to advance, but a time comes when an employer is entitled to some finality. That is all the more so where the employee had not been as co-operative as the employer had been entitled to expect about providing an up-to-date prognosis…” The courts do recognise that employers cannot be expected to wait indefinitely and need to be able to dismiss employees who have no realistic prospect of returning to work.
- The decision does not suggest that an employer has to accept at face value a doctor’s statement of fitness for work. The employer in this case was entitled to reject this new evidence, but only after obtaining its own up-to-date medical opinion.
As shown by the disagreement between the judges in this case, sickness dismissal cases of this type do turn on their own facts and it can be difficult to predict the result. An employer who follows the guidance set out above will, however, have gone a long way towards showing that the dismissal of a disabled employee was both fair and justified for UK law purposes.
O’Brien v Bolton St Catherine’s Academy – judgment available here.