Last month’s Court of Appeal decision in O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145 raises important practical points for employers considering ill-health dismissals.

In this case, the Court of Appeal upheld the Employment Tribunal’s “borderline” decision the Claimant was unfairly dismissed and that her dismissal breached s15 Equality Act 2010 (discrimination arising from disability).

The case turned on a finding that it was unreasonable of the employer to ignore medical evidence (albeit not wholly satisfactory) at an appeal hearing that the Claimant was fit to return to work.

Facts of the case

The Claimant was a teacher, and head of the IT department. Following an attack by a pupil at school, she suffered anxiety, depression and possibly PTSD. It was common ground that the Claimant was suffering from a disability.

At the time of dismissal the Claimant had been absent for more than 12 months. At the capability hearing (in January) there was no indication of when she might return, nor any clear medical evidence of her prognosis.

The Claimant appealed the decision to dismiss her, but her appeal was rejected. This was despite the fact that at her appeal meeting (in April) the Claimant had produced:

  • evidence indicating that she had been referred to psychologist and was undergoing a course of treatment sessions;
  • a GP fit note declaring her fit to work (and the Claimant confirmed she could return to work).

The judgment – new evidence

In cases of ill-health dismissals following long term absence, assuming an employer has otherwise followed a fair procedure, the final question will be whether the employer could have been expected to keep the employee's job open any longer, and if so, how much longer. Every case will be different depending on its facts.

Underhill LJ made the following comment in this case: “The argument "give me a little more time and I am sure I will recover" is easy to advance, but a time comes when an employer is entitled to some finality. That is all the more so where the employee had not been as co-operative as the employer had been entitled to expect about providing an up-to-date prognosis." (paragraph 36)

Whilst this is a helpful statement for many long term absence cases, O'Brien v Bolton St Catherine's Academy, was not a case where the Claimant was predicting that she would be fit soon and asking the school to wait a little longer. The Claimant was in fact asserting that she was fit to return at the point of the date of the appeal hearing.

The school initially argued that their procedure provided for an appeal by way of review, rather than rehearing, and so the relevant consideration was the state of information about her health that they had at the time of the dismissal hearing. This was rejected by the Court of Appeal, and it was noted that where there is new evidence (rather than evidence that was deployed or available at the time of the original decision) the distinction between a review and rehearing is likely to have little significance.

The judgment – disruption

Disruption to the employer’s business is often heavily relied upon to justify long-term ill-health dismissals. However, although this disruption is often seemingly obvious to those managing the process, employers should nevertheless ensure that this contention is stated along with supporting evidence particularising the impact in support of this contention. In O'Brien v Bolton St Catherine's Academy - despite the Claimant’s senior position as head of department - the Court of Appeal did not interfere with the Employment Tribunal’s decision that it had not been provided with sufficient supporting evidence. Underhill LJ made the following observation in this case:

"In principle the severity of the impact on the employer of the continuing absence of an employee who is on long-term sickness absence must be a significant element in the balance that determines the point at which their dismissal becomes justified, and it is not unreasonable for a tribunal to expect some evidence on that subject. What kind of evidence is appropriate will depend on the case. Often, no doubt, it will be so obvious that the impact is very severe that a general statement to that effect will suffice; but sometimes it will be less evident, and the employer will need to give more particularised evidence of the kinds of difficulty that the absence is causing." (paragraph 45).

Practical points arising from this case

Where there is new evidence about the employee’s ability to return to work, employers should properly consider this. Even if the evidence itself is not complete or wholly convincing, steps should be taken (including possible postponement and investigation) to ascertain the medical prognosis. Simply ignoring the new evidence is unlikely to be sufficient, and in many cases it may be that the employer needs to obtain its own medical opinion. Care should be taken to ensure that appeal panels do not automatically approve the dismissal without proper consideration of the present circumstances.

Employers need to ensure that evidence of the disruption arising from an employee’s absence is included as part of the case supporting dismissal, however obvious this may appear to be.

Long term absence may provide one of the more straightforward bases for a fair dismissal (providing that disability considerations are appropriately taken into account and reasonable adjustments made) but, as this case illustrates, there are various procedural pitfalls for the employer which need to be avoided.


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Hannah Wright

Solicitor

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Posted on 07/04/2017 in Legal Updates

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