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Dismissing staff on long term sickness – What is fair?

BY Donald MacKinnon
Employment Law & HR
BG Purple

The Court of Appeal has stated that dismissing an employee on long term sickness is not necessarily unfair, ruling on the case of O’Brien vs Bolton St Catherine’s Academy. Teacher, Georgina O’Brien, was attacked at the secondary school, she was not hurt and returned to work shortly after. After a few weeks however, she went of sick with stress claiming that she did not feel safe in some parts of the school and that the school had not taken the aggressive behaviour by the students seriously enough.

After being off sick for over a year, the school attempted to seek information on when she would be able to return and what adjustments that could be made to facilitate her return. This information was not forthcoming and Ms O’Brien did not attend a meeting as she felt it would make her too upset. She did however, fill in a questionnaire, but referred crucial questions about the time of her return to her GP who could not be confident in giving an accurate timescale.

The school dismissed her on the grounds of capability after following the school’s procedures around sickness management. Ms O’Brien appealed and produced a fit note during the appeal hearing stating that her return to work was imminent, but the school were dubious about its authenticity due to the sudden improvement in her health. Her dismissal was upheld.

Ms O’Brien subsequently won her Employment tribunal for unfair dismissal and disability discrimination for disability but this was later overturned by the EAT. The Court of Appeal restored the original decision and gave some guidance to employers where they are unsure when an employee is going to return to work.

  • It is not necessarily unfair for an employee to dismiss an employee who has been off sick for more than 12 months with no certainty when they may return. Where it is simple for an employee to ask for a little more time to recover, the employer does need some finality.
  • When deciding whether or not to dismiss, the impact on the employer must be significant for the dismissal to be justified.  A tribunal will need to see evidence of the disruption in order the make the decision.
  • When an employee produces medical evidence on appeal, the decision must be fair based on the evidence available at the time of the appeal hearing. 

 In this case the Court of Appeal ruled against the school, stating that when Ms O’Brien produced the updated fit note at the appeal it would have been reasonable to look for further medical evidence, therefore they didn’t meet the conditions made in point 3.

This case could be very useful for employers as it makes it clear that they cannot be expected to wait indefinitely for the employee to return and that if they can prove disruption to the business this will help their case. It is important therefore for employers to take a note of where disruption has occurred as this will be needed if they want to rely on it later. However it also emphasises the importance of obtaining up to date medical evidence to support any decision to dismiss.

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