The facts of the case
Ms. O’Brien was Head of IT at an Academy in Bolton when a pupil assaulted her.
Whilst not physically injured, the claimant suffered an acute stress reaction to the assault which left her feeling shaken and unsafe in parts of the school. The claimant also told the appeal court that she did not believe the school took aggressive behaviour by students seriously enough, after the school refused to reinstate an earlier policy to automatically exclude pupils who assaulted staff.
The claimant took several short periods of time off work sick, but following further incidents, she went off sick in December 2011 and was later diagnosed with anxiety, depression and post traumatic stress disorder. She was formally dismissed in January 2013 after the school had asked for a return to work date and asked about reasonable adjustments. O’Brien then refused to attend a meeting to discuss her prognosis because she felt the meeting might ‘upset’ her. O’Brien referred the school back to her GP, who could not confirm a return to work date. and a formal medical incapacity hearing under the school’s sickness absence management procedures led to her being dismissed on the grounds of capability.
However, on an internal appeal, Ms O’Brien presented the appeal panel with a medical note, stating that she was fit to return to work imminently. The dismissal was upheld nonetheless, as the employer believed that the medical information was inconsistent, and was suspicious of the sudden appearance of a more positive diagnosis in a fit note.
The legal outcome
The original tribunal had found in favour of the Plaintiff, who it ruled had been discriminated against because of her disability (mental illness following the assault.) The tribunal ruled that the school should have “waited a little longer” for her to gather medical evidence before deciding whether or not to dismiss her. It was “not reasonable” to sack her “at that point” and her dismissal was “substantively unfair”, the tribunal decided.
The decision was then overturned by the Employment Appeal Tribunal, leading to the latest hearing, which has now reinstated the tribunal’s decision. During Justice Underhill’s ruling, long term sickness dismissals clarified that “there comes a time when an employer is entitled to some finality”. The ruling stated that employers should consider:
- if an employee has been absent for more than 12 months and there is “no certainty” when they will return, dismissing them is not necessarily unfair.
- However the ruling also stated that business impact of ongoing absence must be a “significant element” in deciding if dismissal is justified.
- Where an employee produces updated medical evidence at the appeal hearing, the decision to dismiss must be fair on the basis of the information available to the employee at the time of the appeal.
The school had been unable to produce evidence of such an impact, which was a factor in O’Brien winning the case. The court felt the school could reasonably have waited ‘a little longer’ in the absence of evidence that doing so would have been detrimental.
Comments on the ruling
Stephen Simpson, principal employment law editor at XpertHR, said:
“While the employer ultimately lost this case, it is very useful for employers dealing with long-term sick leave. The Court made it clear that employers are not expected to wait forever for an employee to recover from illness, and dismissal is a valid possibility even where there is a vague promise from an employee of an imminent return.
“However, the court warned employers that, when balancing whether the time has come to dismiss, the employer needs to have considered the disruption to the business that the absence is causing. It is therefore a good idea for the employer to have a written record of the issues that are being caused, for example who has been brought in to cover the work, or what extra work colleagues are doing because of the absence.
“The other key warning for employers is to review carefully all the medical evidence during the whole of the sickness absence management process. This includes evidence that comes to light between the original decision to dismiss and any appeal hearing.”
Absence management expert Adrian Lewis, of Activ Absence said:
“The saddest thing about this claim is that the school have lost a valued teacher and Ms. O’Brien has suffered a horrendous illness – whoever won in Court, the process has been painful.
“We recommend employers manage sickness absence using an automated system with trigger points, so that patterns of sickness are picked up early, giving employers a vital opportunity to offer targeted support and reasonable adjustments at an early stage, often before the employee takes long term sickness absence.
“Furthermore, an automated system enables them to record key dates and outcomes, and maintain contact through the period of illness, making it easier to support an employee but also produce records for the court and prove the financial impact of absence on the business should that be required. Ultimately though, the aim is always to get people healthy and back in work.”