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Dismissals for Long-Term Sickness Absence

View profile for Manisha Chauhan
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This is always a difficult decision employers tend to face when there is an employee off sick for a long period time and shows little or no prospect of ever returning to work. What is the best decision for the employer whilst ensuring they do not open themselves up to claims of both unfair dismissal and disability discrimination?

This was considered by the Court of Appeal in the recent case of O’Brien v Bolton St. Catherine’s Academy.

Mrs O’Brien, a head of department at the Academy, had been assaulted by a pupil. As a result of the assault, which emotionally damaged her, Mrs O’Brien was signed off work due to stress and later diagnosed with anxiety, depression and post-traumatic stress disorder.

After one year of her absence, the Academy were still none the wiser of when Mrs O’Brien might be able to return to work and despite requests about her prognosis, which was never responded to in a satisfactory manner, the Academy dismissed her on the grounds of capability.

Mrs O’Brien appealed the decision and produced a fit note from her GP at her appeal hearing stating that she was fit to return to work imminently. She also produced a letter from a psychologist suggesting she would make a full recovery once her treatment had completed. Despite this evidence, the Academy upheld its decision to dismiss on the basis that the evidence was unclear and contradictory.

Mrs O’Brien successfully brought claims of unfair dismissal and disability discrimination in the Employment Tribunal. Although the fit note and evidence submitted at the appeal hearing conflicted with earlier occupational health reports, the Employment Tribunal found that the decision to dismiss was both unreasonable and disproportionate. The Tribunal also found that it would have been reasonable for the employer to have waited a little longer to establish when Mrs O’Brien would be in a position to return to work.

The Academy appealed to the Court of Appel who upheld the decision of the Tribunal. The case has now been referred back to the Employment Tribunal for a remedy hearing so watch this space.

The Court of Appeal also helpfully provided some guidance to employers when faced with a similar situation:-

One factor to consider when taking into account the fairness and proportionality of a dismissal of an employee on long-term sickness absence is the impact any continuing absence is likely to have on the employer i.e. staff costs, workload cover, disruption to the business as it may need to evidenced at Tribunal.

Where an employee provides updated medical evidence at an appeal hearing, it may be better to wait a little longer to find out when the employee may be able to return to work and whether any reasonable adjustments will be necessary to implement. Medical evidence must not be ignored.

It is not automatically unfair or unreasonable for an employer to dismiss an employee who has been absent for more than 12 months and provided no indication as to when they expect to return to work. However, employers must be able to demonstrate why it was necessary to dismisses at that point in time.

For advice on any of the issues above, long term sickness absence or any other employment enquiry, please contact a member of the Chattertons Employment Team.

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