Long-term sick leave dismissals: court guidance on borderline cases

Royal Courts of Justice. Photo: REX/Image Broker

The Court of Appeal has provided guidance on when employers can dismiss an employee on long-term sick leave, in what judges described as a “borderline” case.

In O’Brien v Bolton St Catherine’s Academy, Ms O’Brien, the head of a department at a school, was attacked by a pupil. Her injuries were not serious and she returned to work after a short period.

However, Ms O’Brien felt unsafe in parts of the school and was dissatisfied with what she saw as the school’s lack of action on dealing with aggressive pupils. She later went off work with stress.

After more than a year off work, the school sought clarification as to when she might be able to return to work and what adjustments it could make to facilitate her return.

However, the school had difficulty getting this information. Ms O’Brien refused to attend a meeting to discuss her prognosis because she felt the meeting might upset her. She was asked to provide the information in writing, which she did in a questionnaire.

However, Ms O’Brien replied to key questions about timescales and barriers to a return to work by referring the school back to her GP, who did not feel confident about when she might be able to return to work.

The school subsequently dismissed her after a formal medical incapacity hearing under the school’s sickness absence management procedures.

At the time of the formal medical incapacity hearing, there was there was nothing to indicate to the employer that a return to work was “likely in the near term”.

The dismissal was upheld after an internal appeal. This was despite Ms O’Brien presenting a fit note from her GP that her return to work was imminent.

The employer believed that the medical information was inconsistent, and was suspicious of the sudden appearance of a more positive diagnosis in a fit note.

Ms O’Brien won her employment tribunal claims for discrimination arising from disability under the Equality Act and unfair dismissal.

However, the decision was overturned by the Employment Appeal Tribunal, which held that the tribunal had gone too far in expecting the employer to cope with her absence any longer.

The Court of Appeal restored the employment tribunal decision and provided valuable guidance for employers that are considering a long-term sick leave dismissal when the diagnosis and timeframe for recovery are uncertain.

Lord Justice Underhill made the following important points for employers:

Long-term sick leave dismissal: a genuine “borderline” case

Unusually, the Court of Appeal decision was by a majority. Lord Justice Davis disagreed with Lord Justice Underhill, on the basis that:

  • the ongoing disruption to the school caused by the absence was obviously significant;
  • there was evidence that Ms O’Brien had been uncooperative during her absence;
  • the school was entitled to treat the late appearance during the appeal of a positive fit note from her GP as suspicious; and
  • the school was entitled to conclude that “enough was enough” after such a long absence.
  • It is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty as to when the employee will be able to return. While an employee can easily advance the argument “give me a little more time and I am sure I will recover”, there comes a time when an employer is entitled to some finality.
  • The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified. A tribunal considering a long-term sickness absence dismissal will expect some evidence of the disruption to the business, although in some cases the impact will be so obviously severe that a general statement from the employer to that effect will suffice.
  • Where an employee produces updated medical evidence at the appeal hearing, the decision to dismiss must be fair on the basis of the information available to the employee at the time of the appeal. To take an extreme example, an employee who has been diagnosed with a serious condition might find out that it was a misdiagnosis, and that the condition is in fact easily treatable.

Despite making these points, the Court of Appeal decided against the school in this case. According to the appeal court, once the school had received the new fit note from her GP, it had been wrong to dismiss Ms O’Brien without getting further medical evidence.

Stephen Simpson, principal employment law editor at XpertHR, commented on the judgment: “While the employer ultimately lost this case, it is very useful for employers dealing with long-term sick leave.

“The Court made it clear that employers are not expected to wait forever for an employee to recover from illness, and dismissal is a valid possibility even where there is a vague promise from an employee of an imminent return.

“However, the court warned employers that, when balancing whether the time has come to dismiss, the employer needs to have considered the disruption to the business that the absence is causing.

“It is therefore a good idea for the employer to have a written record of the issues that are being caused, for example who has been brought in to cover the work, or what extra work colleagues are doing because of the absence.

“The other key warning for employers is to review carefully all the medical evidence during the whole of the sickness absence management process. This includes evidence that comes to light between the original decision to dismiss and any appeal hearing.”

The case returns to the employment tribunal to consider Ms O’Brien’s compensation.

More on the Court of Appeal decision in O’Brien v Bolton St Catherine’s Academy, including analysis of its implications for employers, is available on XpertHR.

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