In this important decision in the Court of Appeal case of O’Brien v Bolton St Catherine’s Academy, Lord Justice Underhill made a number of significant statements which are very helpful for employers when faced with a "borderline" case for dismissal with an employee on long term sick leave.
- 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.
The outcome in this case was decided against the school as they held once the school had received a fit note stating Ms O'Brian was fit to return to work they should not have dismissed. However the case as a whole is extremely helpful for employers to turn to when faced with a difficult balancing act in order to decide to dismiss. In particular the court also made it clear that employers are not expected to wait forever with vague promises of a potential return from an employee on long term sick leave but that the employer should also consider and have in mind the disruption to the business that the absence is actually causing.
It is therefore important employers consider keeping documentary evidence relating to the effects the absence is having on the business and as did not happen in this case make sure that all medical evidence produced is carefully reviewed during the process including any which is discovered or presented between dismissal and appeal.
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 went off work with stress. After a year, the school sought clarification as to when she might be able to return to work and with what adjustments. The school had difficulty getting this information. Ms O’Brien refused to attend a meeting to discuss her prognosis and was asked to provide the information in writing, which she did in a questionnaire. The school subsequently dismissed her after a formal medical incapacity hearing under the school’s sickness absence management procedures.