Managing long term sickness absence – when can you safely draw a line in the sand and dismiss?

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The recent Court of Appeal judgment in O’Brien v Bolton St Catherine’s Academy provides some helpful additional guidance on the vexed question of how long an employer has to wait before dismissing an employee on long term sickness absence, and the factors an employer needs to take into account when considering an appeal against such a decision.   

Legal background

Most employers will at some stage have to grapple with the thorny issue of the potential dismissal of an employee on long term sick-leave. Such decisions are often made doubly complex by virtue of the fact that the employee in question may well have a potential claim for disability discrimination, as well as unfair dismissal, if the employer gets it wrong. One of the most difficult issues for employers in these circumstances is determining at what point they can no longer be reasonably expected to wait for the employee to return to work, and the role that medical evidence should play in this decision.

Case facts

Ms O’Brien was a teacher at St Catherine’s Academy in Bolton, (‘the Academy’). Following an incident of assault by a pupil she became unwell and went off sick, suffering from anxiety, depression and PTSD. She had been off for some 13 months when the Academy held a formal medical incapacity hearing. During this time, the Academy had obtained two reports from its own occupational health providers, neither of which had given an opinion of when, or even if, Ms O’Brien would be able to return to work. During her absence, Ms O’Brien had failed to co-operate fully with the Academy in its requests for further information and medical evidence, only allowing the Academy limited access to her GP.  

At her incapacity hearing Ms O’Brien told the panel she believed she would be able to return to work within the next couple of months, however she acknowledged that her therapist had been less optimistic about her return. Following the incapacity hearing, the panel decided to dismiss Ms O’Brien on the ground of capability. It confirmed that its decision was due to the length of Ms O’Brien’s absence from work, and the lack of any convincing medical evidence as to when, or even if, she would be able to return to work. Ms O’Brien appealed against the decision to dismiss.

At her internal appeal hearing, Ms O’Brien informed the appeal panel that she was ready to return to work straight away. She also provided a GP fit-note stating that she was fit for work, and a letter from her psychologist which indicated that she was expected to make a full recovery, following completion of a specific course of treatment.  Despite this, the appeal panel upheld the original decision to dismiss on grounds of capability. It stated that it was not satisfied that the newly produced medical evidence did conclusively establish that Ms O’Brien was fit to return to work without a relapse, nor did it provide a specific time-frame when she would be.  

Ms O’Brien brought various claims against the Academy, including unfair dismissal and disability discrimination.   

Employment Tribunal and EAT decisions

The original Employment Tribunal decided that Ms O’Brien’s dismissal was both unfair and amounted to discrimination arising from disability. It confirmed that its decision was primarily based on the Academy’s failure to produce adequate evidence of the negative effect of Ms O’Brien’s on-going absence, and why it could not be expected to wait any long for her to return to work, particularly in light of the fresh medical evidence she had provided at her appeal hearing.

The Academy appealed to the Employment Appeal Tribunal (EAT). The EAT disagreed with the Employment Tribunal’s approach and its emphasis on the lack of evidence produced by the Academy as to the difficulties caused by Ms O’Brien’s on-going absence.  The EAT overturned the tribunal’s decision. Ms O’Brien then appealed to the Court of Appeal.

The Court of Appeal’s decision

The Court of Appeal found, albeit by a majority rather than unanimously, that the Employment Tribunal had been entitled to find Ms O’Brien’s dismissal both unfair and discriminatory and the EAT should not have overturned the tribunal’s findings.

The Court of Appeal agreed with the Employment Tribunal that the lack of evidence produced by the Academy to demonstrate the negative effect of Ms O’Brien’s ongoing absence was a relevant issue. The Academy had already managed to cope for some 13 months without Ms O’Brien at the time of her incapacity hearing, and had failed to demonstrate why they could not reasonably be expected to wait a further relatively short additional period in order to investigate the new medical evidence provided by Ms O’Brien at her appeal hearing.  This was particularly so in light of the fact the Ms O’Brien herself stated that she was fit to return to work at that date. The Court of Appeal concluded that if the appeal panel had had doubts as to the reliability of the additional medical evidence, it should have obtained its own further occupational health advice on the new evidence, including the likelihood of relapse, before upholding Ms O’Brien’s dismissal.    

The Court of Appeal overturned the EAT’s decision, and held that the case should proceed to a remedy hearing before the Employment Tribunal.

Comment

Clearly, sickness dismissal cases will always turn on their particular facts. However, this case shows that while discrimination arising from disability and unfair dismissal are of course different and subject to distinct legal tests, in cases of long term sickness absence, the outcome in such claims will often be the same. The reasoning of the Court of Appeal in this case provides some useful pointers/reminders for employers seeking to show that such a dismissal is both fair and justified. In particular:

  • The importance of evidence demonstrating why you can’t be expected to wait any longer for an employee to return to work.Employers are not expected to wait indefinitely, but you should be able to demonstrate the extent of the problems caused by the employee’s on-going absence, how such problems have been dealt with to date, and why such arrangements cannot continue - i.e. provide justification for why a particular ‘cut-off point’ is now necessary.
  • Not to automatically reject/dismiss new medical evidence, even if it is presented late in the day at appeal stage and you are skeptical about its quality. The correct approach to the provision of such evidence is to adjourn proceedings and seek to obtain further occupational health/expert medical opinion on the issues raised in the new medical evidence. This is particularly so if, as in the O’Brien case, you are disputing the employee’s own assertions as to their fitness to work.

EEF Support

Members can find further information and guidance on the management of sickness absence on EEF’s website, click here.

EEF will also be running a series of national seminars in June – Employee ill health: active management for effective outcomes – focusing on strategies for reducing the business impact of employee ill-health and sickness absence, while minimising legal risk.  For further information, or to book a place, click here.

Author

Principal Legal Adviser

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