Dismissing employees who have been absent from work due to long-term illness is a tricky area giving rise to the risk of both unfair dismissal and disability discrimination claims.
O'Brien v Bolton St Catherine's Academy
The recent Court of Appeal case of O'Brien v Bolton St Catherine's Academy provides employers with some guidance.
Here, Ms O'Brien, a head of department at Bolton St Catherine's Academy, was assaulted by a pupil. While her physical injuries were not serious, Ms O'Brien was very shaken by the incident. She was ultimately signed off work, initially due to stress and with subsequent diagnoses of anxiety, depression and post-traumatic stress disorder.
After Ms O'Brien had been absent for over a year, with no indication of when she might be able to return to work, she was dismissed following a formal hearing under the school's sickness absence management procedure.
Ms O'Brien appealed the school's decision. At the appeal hearing, she provided evidence that she was fit to return to work imminently. The school upheld its decision to dismiss.
Are the tests for unfair dismissal and discrimination arising from disability the same?
Ms O'Brien was successful in establishing that her dismissal was both discriminatory and unfair. The case was borderline because of the length of the absence and the unsatisfactory nature of the medical evidence (the fit note and evidence from a therapist submitted at the appeal stage conflicted with earlier occupational health reports). However, it was found to be unreasonable and disproportionate to disregard the evidence submitted at the appeal stage without at least a further assessment by occupational health - particularly as there was no evidence as to the adverse impact of Ms O'Brien's continued absence on the school.
The Court of Appeal rejected the argument that the Employment Tribunal had been wrong to find that it necessarily followed from the fact that Ms O'Brien's dismissal was unjustified (on the application of the test for discrimination arising from disability), that it was also unreasonable (on the application of the unfair dismissal test). Despite the differences in the wording of the two tests and the burden of proof, they should seldom lead to different results in the context of long-term sickness where the employee is disabled for the purposes of the Equality Act 2010.
How should employers approach a decision to dismiss for long-term sickness absence?
The Court of Appeal also laid out some general principles regarding what to do before taking the decision to dismiss for long-term sickness absence.
- It is not inevitably unfair for an employer to decide to dismiss an employee who has been absent for in excess of 12 months and who has provided no certainty as to when or if they will be able to return. There comes a point when the employer is entitled to some finality.
- Where an employee provides updated medical evidence at an appeal hearing, the fairness of the dismissal is considered in light of the new information available to the employer at that time. Therefore, it might become necessary to wait a little longer and take further steps to find out more about when the employee will be able to return; whether any adjustments would be required etc.
- One of the relevant factors when assessing the fairness and proportionality of a dismissal of an employee on long-term sickness absence is the impact on the employer of the continuing absence (e.g. in terms of cost; burden on others; disruption to the business). Although in some cases the impact will be so obvious that a general statement will be enough, it is good practice to consider this during the dismissal process and to be able to provide evidence on it at tribunal if required.
Workbox users can access more detail on long-term sickness absence management.
If you wish to discuss a particular case, please contact the Brodies Employment team.