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Waiting a little longer – long term sickness dismissals

Meredith Hurst Friday, February 9, 2018

Dismissing an employee who has been on long term sick leave is a scenario that can be fraught with difficulty - particularly when the employer must always consider if it should "wait any longer and, if so, how much longer[1]". It's difficult for the employee too, who may be frustrated by his or her condition, and upset about the situation he or she finds himself in, particularly if the condition has arisen from a situation at work. The competing needs of the employer trying to run a business, and the employee wanting to remain in work, while still needing to recover, must be balanced with care. And as the recent case of O'Brien v Bolton St Catherine's Academy reminds us, employers may find that 'waiting a little longer' will be a prudent approach.

The facts in O'Brien

Mrs O'Brien was 'Director of Learning ICT' at Bolton St Catherine's Academy. She was assaulted by a pupil in March 2011, and consequently (and understandably) started to feel unsafe in certain parts of the school. She also felt the school's policy of not automatically excluding pupils who assaulted staff meant the school did not take what had happened to her seriously. Her initial recovery time following the incident was short and she returned to work. However, in December 2011, she was signed off work, initially with stress, with subsequent diagnoses including anxiety, depression and post-traumatic stress disorder (PTSD). She was dismissed for incapacity in January 2013, and the dismissal was upheld on appeal in April 2013.

At the dismissal hearing, Mrs O'Brien gave evidence that she was, at that point, receiving treatment for PTSD which was making a big difference (previous interventions had failed to see an improvement in her condition). On the basis of the progress she was making, she told the hearing that she thought she would be able to return to work in April 2013.

The appeal against dismissal took place on 10th April. Mrs O'Brien had a fit note from her doctor who had seen her the day before, confirming that she was, in fact, fit for work. Despite this, the appeal failed.

The Employment Tribunal Decision

When the Tribunal considered the decision to dismiss, it noted that the School "… did not consider the impact of the claimant's absence on the business, did not way [sic] up the effects of terminating the claimant's employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further 3 months" Even at the Tribunal hearing itself, it seems that the witness for the school was vague as to the impact of Mrs O'Brien's absence on the school as a whole, and the pupils..." (para 18, Court of Appeal decision[2]).

The Tribunal found that the dismissal was unfair. In relation to her claim for disability discrimination, the Tribunal also held that dismissal was a disproportionate response. Essentially, the School had failed to carry out the proper balancing exercise. Had it done so, it would have probably concluded that in this case, it would have been reasonable to wait a little longer.

The Court of Appeal decision

The School appealed successfully, although the EAT remitted the matter to a fresh Employment Tribunal, suggesting that the outcome of the substantive matter was not obvious. Mrs O'Brien appealed this decision to remit, and the matter came before the Court of Appeal.

The Court of Appeal agreed that the Employment Tribunal was entitled to make the decision that it did, and upheld the decisions of unfair dismissal and disability discrimination.

However, it was a 'borderline case'. The Court of Appeal sympathised with the view that it would be obvious that the long-term absence of a senior member of staff would impact the running of the school, even if the school had not brought much evidence to this effect. The Court of Appeal also agreed that the circumstances - long term absence of over 12 months with no clear indication of when the employee would return to work could well be a fair basis for dismissal - a decision that it was unfair to dismiss in those circumstances would "require very careful scrutiny. 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." [para 37 Court of Appeal decision]

At the time of the dismissal, there was inconclusive evidence about Mrs O'Brien's condition, her prognosis and her likely return to work, although she had asserted that she might return in April. However, by the time of the appeal hearing, she had a fit note saying she was ready for work at that time. The school did not have to accept the fit note but could have carried out its own investigations to make sure (as health and safety practice would suggest prudent). As a result, it should have waited a little longer.

Waiting a little longer

'Waiting a little longer' is an underlying theme of many long term ill health cases, and the decision in this case does recognise that there comes a point where the employer can insist on finality. Had there been no further improvement by the time of the appeal hearing in April 2013, it seems that Mrs O'Brien's case could well have failed. The Tribunal recognised the possibility of medical evidence being advanced which did not properly reflect an employee's condition, simply to prevent dismissal, but the duty on the employer would be to consider this before confirming a decision to dismiss.

The case also highlights a couple of important points. Firstly, the decision to dismiss is a "product of the combination of the original decision and the failure of [the] appeal, and it is that composite decision that requires to be justified". The school had told Mrs O'Brien that the appeal should only look at whether the decision to dismiss in January 2013 was reasonable based on the evidence it had at that time. This was the wrong approach, both in the context of dismissal and discrimination.

Another point to note is that although the tests for unfair dismissals and for justification in discrimination are different, they will usually lead to the same outcome, and it would not be an error of law to consider them together. In this case, "The factors which it [the Employment Tribunal] had so thoroughly discussed in relation to the justification of the Appellant's dismissal for the purpose of the discrimination claim - specifically, the duration of her absence to date; the evidence as to when she might be expected to return; the reasonableness of the school waiting a little longer; and the impact of her continuing absence - were substantially the same as those which have to be weighed in the unfair dismissal context" [para 56 of the Court of Appeal decision]

It's also important to remember that every case must be dealt with on its own facts.

If you're struggling with a long-term sickness absence issue and would like some advice and support, get in touch. Thomas Mansfield is a specialist employment law practice in London which works with both employers and employees in all areas of employment law.



[1] Spencer v Paragon Wallpapers Ltd [1977] ICR 301

[2] [2017] EWCA Civ 145

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