Dismissing an employee on long term sick leave will not necessarily be unfair

The Court of Appeal has issued helpful guidance for employers on when it may be fair to dismiss an employee on long term sick leave. 

3 April 2017

Employers are put under additional pressure when an employee is absent on long-term sick leave; a temporary replacement may need to be hired or the workload spread among colleagues. It can be difficult to manage the operational needs of the business if the employer has little indication as to when, or if, the employee will return to full-time employment. In O’Brien v. Bolton St Catherine’s Academy, the Court of Appeal provided some guidance for employers in this situation.

Ms O’Brien was a teacher and head of department. She had been assaulted by a pupil at the school and, due to concerns in relation to how the school treated aggressive pupils, she suffered an acute stress reaction, leaving her unable to return to work. The school asked her for clarification as to when she could be expected to return to work and what adjustments could be made to support her. Ms O’Brien provided a written questionnaire which referred the school to her GP in relation to key questions such as when she could be expected to return. The GP was not able to confidently say when she might be able to resume her employment with the school. 

Ms O’Brien was subsequently dismissed for capability reasons after a formal medical incapacity hearing. At an appeal hearing, however, she produced a note from her GP stating that she was now fit to return to work. The dismissal was upheld on appeal due to the inconsistent nature of the medical evidence she had provided.

The Employment Tribunal found that Ms O’Brien had suffered discrimination arising from her disability. The employer failed to show that the dismissal was a proportionate means of achieving its legitimate aims of “the efficient running of the school, the reduction of costs and the need to provide a good standard of teaching”. The tribunal held that evidence was required on the adverse impact of the employee’s prolonged absence.  The school should also have sought further evidence in relation to the last-minute fit note they received as waiting to clarify this would have been a less discriminatory means of achieving their aim.

The Employment Appeal Tribunal, in allowing the employer’s appeal, took a more common sense approach. They held that the impact of a senior employee being on long-term sickness absence was obvious and specific evidence on this did not need to be provided. 

The decision of the Employment Tribunal was, nevertheless, reinstated by the Court of Appeal. Although it was held that the employer initially had good reasons for the dismissal, due to the length of the absence and how vague the evidence was in relation to when the employee could be expected to return, the submission of the additional medical note at the appeal hearing changed the analysis. At that point, the employer was under a duty to investigate the new evidence, and without doing so the dismissal could not be justified. 

In coming to this decision, the court gave the following helpful guidance on the issue of employees off on long-term sickness absence:

  • Where an employee has been on sick leave for more than 12 months and there is little certainty as to when they may return, a dismissal will not necessarily be unfair - “there comes a time when an employer is entitled to some finality”.
  • A significant factor will be how much the employee’s continued absence will impact the employer. Evidence of this impact must be provided, even if the impact is so obvious that only a general statement is required.
  • Where there is an appeal hearing and additional information is given, this must be considered properly, as the decision to dismiss must be fair at the time of the appeal.

The case has been remitted to the Employment Tribunal to consider the amount of compensation due to the employee.