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Long-term absence dismissals

Is there a point in time when an employer can say ‘enough is enough’ and dismiss an employee who has been absent for a long time, even if there is some evidence that an imminent return could be possible?

The Court of Appeal has recently considered this question when deciding an appeal against findings of unfair dismissal and discrimination arising from disability following the dismissal of a teacher on ill-health grounds.

Was the dismissal unfair and did it give rise to disability discrimination?

O’Brien v Bolton St Catherine’s Academy

Ms O’Brien worked for Bolton St Catherine’s Academy from 2005, latterly as Director of ICT Learning. On 25 March 2011 Ms O’Brien was assaulted by one of the pupils. There were no serious physical consequences of the assault but Ms O’Brien did take a short leave of absence in the immediate aftermath. On her return, Ms O’Brien claimed that she felt unsafe at the school and as such her duties were restricted. Ms O’Brien believed that the school did not take the assault seriously enough. After some time, Ms O’Brien went off sick submitting a sick note from her doctor for stress at work.

There was then a meeting between the school, Ms O’Brien and her trade union representative where it was agreed that Ms O’Brien should be referred to an occupational health physician. The occupational health physician reported that considerable work would be required to resolve Ms O’Brien’s anxieties for it to be possible for her to return to work. A few months later, after Ms O’Brien continued to receive psychological treatment and medication, the occupational health physician reported that her condition had not improved and diagnosed Ms O’Brien with Post Traumatic Stress Disorder (PTSD) with no adjustments being identified to enable her to return to work. Subsequently, the school arranged a meeting to discuss possible adjustments to facilitate a return to work. Ms O’Brien would not attend.

The school became frustrated at Ms O’Brien’s lack of cooperation and conducted a formal medical incapacity hearing under the school’s absence procedure. The decision from the hearing was that Ms O’Brien should be dismissed as she had made no progress, no indication of when she was likely to return to work and a concern that the school environment could lend itself to her absence occurring again.

At an internal appeal hearing, Ms O’Brien submitted evidence, in the form of a GP Fit Note, that she was fit to return to work; however, she also submitted a report from an Associate Psychologist which indicated that she was suffering from depression and anxiety. The appeal panel considered that the Fit Note was merely an attempt by Ms O’Brien to get back to work. There was inconsistent evidence about her fitness to return and the school environment had not changed. Consequently, the panel decided to uphold the decision that Ms O’Brien’s employment be terminated.

Ms O’Brien brought proceedings in the Employment Tribunal claiming unfair dismissal, direct discrimination and unfavourable treatment arising from a disability and wrongful dismissal.

Employment Tribunal (ET)

The ET dismissed the claim for direct discrimination. However, it agreed that Ms O’Brien was suffering from a disability and upheld claims for unfavourable treatment arising from disability, unfair dismissal and wrongful dismissal.

The ET took the view that the school had not addressed the issues of Ms O’Brien’s disability in the appeal hearings and that the school should have taken additional time to obtain further expert evidence on whether Ms O’Brien was fit to return to work. It said that “waiting a little longer” would not have been a detriment to the school.

The school appealed.

Employment Appeal Tribunal (EAT)

The EAT found that the ET had erred in law by concluding that the school had unlawfully discriminated against Ms O’Brien as it was unreasonable to suggest in the circumstances that the school could “wait a little longer” and investigate Ms O’Brien’s illness further. Ms O’Brien had already been absent for 14 months, was head of department and this was bound to have caused a detriment to the school.

It also took the view that the ET had applied the same tests to determining unfair dismissal as those applied to whether any discrimination arising from disability was a proportionate means of achieving a legitimate aim.

Decision

The Court of Appeal, with a majority of 2:1, reinstated the finding of the Employment Tribunal.

The Court acknowledged that this was a borderline case given Ms O’Brien’s length of absence and the ambiguity about when she may be able to return. However, the Court agreed that the key point in the case was that at the time of the internal appeal hearing there was some evidence (however flimsy) that she may be fit to return and that it was disproportionate for the School to dismiss that without further assessment.

Interestingly, the Court of Appeal also supported the argument that the tests for unfair dismissal in a long-term ill-health dismissal and the test for whether a dismissal was discrimination arising from a disability should usually produce the same result, notwithstanding the different wording of the respective tests.

In reinstating the Tribunal’s decision, the case was sent back to the Tribunal to conduct a remedy hearing.

Conclusion

This case serves as a reminder to employers to ensure that they consider all relevant evidence before taking a decision to dismiss for long-term ill–health. If an employee presents some medical evidence that they may be able to return to work, either at the point of a hearing or in the not too distant future, the employer should pause to seek further medical advice before dismissing.

The case is also useful to underline that a dismissal can still be unfair even if the employee has been absent for a significant period of time. It is not the duration of the absence which justifies any dismissal, it is whether the employer can be expected to wait longer for the employee to return and, if so, how much longer.  This requires the employer to examine the impact of the continuing absence before dismissing.

If you have any queries relating to dismissal, discrimination or any other HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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