When Should Appeal Panels 'wait a little longer' Before Confirming a Dismissal in Cases of Long-Term Sickness Absence?

A recent Court of Appeal case, O'Brien v Bolton St Catherine's Academy, considered the effect of fresh medical evidence adduced at an appeal hearing and the factors that the appeal panel should have taken into account before reaching its conclusions.

The Facts

Ms O’Brien was Director of Learning ICT at Bolton St Catherine's Academy (the School). In March 2011 she was assaulted by a pupil at the School. Her physical injuries were not serious and she shortly returned to work but she felt unsafe and was unhappy with the School’s response to the situation. In December 2011 she went off sick suffering from stress at work, and subsequently anxiety, depression, and PTSD, which it was accepted amounted to a disability.

In January 2013, after Ms O'Brien had been absent for over 12 months, the School arranged a formal hearing to consider whether Ms O'Brien should be dismissed for incapacity.

The Head presented the case for dismissal which included a summary of the medical history and available evidence, but did not give any detail about the effect of Ms O'Brien's continued absence on the School. Ms O'Brien did not dispute the medical evidence but stated that she had recently been referred to a therapist and that she now hoped to be able to return to work by the end of April 2013. The School took into account the length of time Ms O'Brien had been off work with no substantive improvement in her condition, the fact that there was no clear prognosis that she would be able to return to work in the near future, and concerns that the incident that had caused her ill health could recur, and decided to dismiss Ms O'Brien.

Ms O'Brien appealed and an appeal hearing took place in April 2013.

During the appeal hearing Ms O'Brien presented 2 new documents:

1. A statement of fitness for work dated the previous day certifying her as fit to work.
2. A letter from a psychologist dated February 2013 which stated that, in her opinion, if Ms O'Brien underwent an appropriate course of treatment, she would be well enough to return to work.

Ms O'Brien stated that she had undergone the relevant course of treatment and was now well enough to return. The appeal panel were concerned that there was no corroborative evidence to support Ms O'Brien's assertion that she had completed her treatment and believed that the fit note was an attempt by Ms O'Brien to return to work before she was ready. They decided that the School had waited long enough, that waiting longer would place too great a burden on the staff and pupils of the School, and therefore upheld the decision to dismiss.

Ms O'Brien brought several claims against the School including claims of unfair dismissal and discrimination arising from disability.

Judgments

At first instance, the Employment Tribunal held that Ms O’Brien had been discriminated against by the school as a result of something arising in consequence of her disability and had also been unfairly dismissed. The School sought to justify the discrimination arguing that it's aims in dismissing Ms O'Brien were the efficient running of the School, the reduction of costs, and the need to provide a good standard of teaching.

Whilst the Tribunal accepted these aims as legitimate, it concluded that the dismissal was not a proportionate means of achieving those aims, primarily because the School had adduced no evidence of the adverse impact Ms O'Brien's absence was having on the School and in light of this, concluded that it would have been reasonable for the School to 'wait a little longer', particularly in light of the encouraging evidence available at the appeal hearing. It also concluded the dismissal was unfair on the basis it was discriminatory.

The School appealed and the Employment Appeal Tribunal (EAT) upheld the appeal. The EAT was more understanding of the School's failure to adduce evidence of the impact that Ms O'Brien's absence was having on the School, commenting that the fact that the absence of the Head of an important department would have a significant effect on the School was a matter of common sense. The EAT remitted the case to be re-heard by a fresh tribunal. Ms O'Brien appealed.

The Court of Appeal upheld Ms O'Brien's appeal and reinstated the decision of the original Tribunal. The Court of Appeal agreed with the Tribunal's reasoning that the School should have 'waited a little longer'. It was particularly mindful that this was not a case where Ms O'Brien was predicting that she would be fit soon, rather it was a case where, by the time of the appeal (which was the appropriate time to judge the reasonableness of the dismissal) she was saying she was already fit to return and therefore the requirement to 'wait a little longer' was only so the School could obtain evidence to confirm, or otherwise, that this was the case.

Best Practice

This case provides a useful reminder of the factors an employer should take into account when considering dismissal in cases of long-term sickness absence.

This particular case highlights how important it is for employers to provide evidence of the impact the absence is having on other staff and the organisation as a whole, and the need for such factors to be actively considered by the dismissing officer(s). Whilst it might, in some cases, appear to the dismissing officer that the impact is so obvious that it goes without saying, we would recommend that some consideration of these factors is always included in the letter setting out the reasons for dismissal, to evidence to a Tribunal that such factors have been taken into account. Employers are not expected to wait indefinitely for an employee to recover from illness and, in rare cases, dismissal can be considered even in cases where an employee promises an imminent return, provided the all relevant factors have been considered.

For more information, please contact Lorna Scully in our Employment Law team on 0121 227 3719.