The Court of Appeal has given guidance on extra steps an employer may have to take when looking at fairly dismissing an employee on long-term sick.

In O’Brien v Bolton St Catherine’s Academy, the employee was assaulted by a pupil at school. She had a short period off work but, on her return, felt unsafe in parts of the building and unsupported by the school. In December 2011, the claimant went off sick with a diagnosis of stress at work. She was twice referred to occupational health (OH) which noted in April and August 2012 that significant work was needed to resolve her condition and she remained unfit for work. A meeting was arranged by the school to discuss the employee’s absence but she did not wish to attend and advised them to contact her GP. The school contacted her GP and received a reply to the effect that they should speak to the employee herself.

A formal medical incapacity process was started and a hearing took place in January 2013. The employee was dismissed because it was unlikely she would return to work in the near future. An appeal hearing was held and the employee produced two pieces of evidence indicating she was now fit to return full time. The appeal board found this information inconsistent and dismissed the appeal. The employee made a number of claims including discrimination arising from a disability and unfair dismissal.

At the employment tribunal (ET) it was decided that the employee suffered discrimination arising from a disability because the dismissal was disproportionate as there was no evidence her absence was causing an adverse impact on the running of the school. As there was no evidence, it was reasonable to “wait a little longer” to see if she could return to work. The ET did not understand why a 17 month absence was wholly unacceptable to the employer when compared with, for example, a 20 or 21 month absence. As the appeal hearing doubted the employee’s evidence regarding her fitness to work, it was also proportionate to wait a little longer to get another OH report before making a final decision.

The case went to the Employment Appeal Tribunal where the ET decision was overturned, however, it was appealed again to the Court of Appeal (CA). The CA found it was not justifiable for the appeal panel to ignore the new evidence of fitness for work as it was held to review the reasonableness of the first decision. They commented that sometimes it will be obvious that the impact an employee’s absence is having is severe but sometimes it will be less evident and the employer will have to provide evidence.

What this means for employers:

  • Evidence of the impact the long term absence is taking on the business needs to be collected. This evidence could show: the disruption caused; the steps taken and cost of covering duties; the effect on the employer’s performance; how continued absence will affect the business and how dismissal will resolve this.
  • Dismissal after an employee produces evidence at an appeal hearing that they are fit to return will be disproportionate – if the employer doubts the evidence they should get their own evidence to confirm fitness for work.
  • If employees are off on long term sick, the employer may well be expected to wait a little longer to gain more clarity.