Education employers may need to “wait a little longer” and take extra steps to gather information when looking to fairly dismiss 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 then felt unsafe and unsupported. She went off sick in December 2011 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 that they should speak to the employee.

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; there was no evidence her absence was causing an adverse impact on the running of the school. Without any evidence, it was reasonable to “wait a little longer” to see if she could return. 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, it was also proportionate to wait and 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.

Lead Education Business Partner, Hussain Ahmed says “Employers need to collect evidence of the impact the long term absence is taking on the business. This will include: the disruption caused, the cost of covering duties, how continued absence affects the business and how dismissal will resolve this. Employers may well be expected to wait a little longer to gain more clarity on their fitness for work.”