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In O’Brien v Bolton St Catherine’s Academy, the Court of Appeal found the dismissal of an employee who was on long-term sickness absence to be unfair and an act of disability discrimination.

Ms O’Brien was a teacher and head of department who was absent from work for more than 12 months as a result of an assault by a pupil. The school dismissed on the basis that it was uncertain when – or even if – Ms O’Brien could return. However, at Ms O’Brien’s appeal hearing three months later, she produced a GP’s Statement of Fitness to Work that said she was fit for work.  The school upheld dismissal.

Equality Act 2010

Ms O’Brien brought claims alleging unfair dismissal and disability discrimination on the basis of unfavourable treatment because of something arising in consequence of her disability.  She said her anxiety, depression and post-traumatic stress disorder amounted to a disability under the Equality Act 2010.

The Employment Tribunal found that the school’s aim of maintaining “the efficient running of the school, the reduction of costs and the need to provide a good standard of teaching” was a legitimate aim. However, the dismissal was unfair and not proportionate, and therefore an act of discrimination because the school should have waited “a little longer” to see if she would return.  This finding’s basis included factors such as insufficient evidence that Ms O’Brien’s ongoing absence had an adverse impact on the school.  The school appealed to the Employment Appeal Tribunal and then the Court of Appeal.

Disability discrimination and long-term sickness absence

The Court of Appeal agreed with the tribunal and said that in this case, the employer should have been wary of dismissing Ms O’Brien’s internal appeal where there was some evidence that she could return and it was not clear that extending employment for a short period to clarify the true medical position would have an adverse impact on the business.

The dismissal was therefore unfair and could not be said to be a proportionate means of achieving a legitimate aim.

The court acknowledged that this was a borderline case. It may be rare that dismissing an employee who has been absent for 12 months is unfair or disability discrimination.  However, every case turns on its own facts.

Disability is defined as a physical or mental condition that has a substantial and long-term adverse affect on someone’s ability to carry out normal day to day activities.

If the employee has a condition that may amount to a disability and they are absent from work for reasons related to the condition, they will likely have an argument that their dismissal is unfavourable treatment because of something arising in consequence of the disability, a breach of the Equality Act 2010.  It will be up to the employer to justify the treatment as ‘a proportionate means of achieving a legitimate aim’.

Dismissing an employee to reduce costs by not having employees ‘on the books’ with little chance of returning to work, and ensuring that the business is efficient and can deliver its objectives with staff who can attend work would usually be accepted by an Employment Tribunal as legitimate aims.  However, this tribunal said dismissal was “the most discriminatory means of achieving the aims.”

If ongoing long-term sickness absence has little obvious effect on a business, it will be particularly important for the employer to set out why the time to dismiss has now come and also to be clear on the true medical position for the employee, in order to justify dismissal for the purposes of a disability discrimination claim or to show that dismissal falls within the range of reasonable responses in an unfair dismissal claim.

One question employers may wish to ask is: ‘Is there any medical evidence that suggests the position will become clearer if we wait a short while?’ If the answer to that question is ‘yes’, the safest option will be to wait a short while.  However, if following reasonable enquiry the only evidence is the employee arguing ‘give me a little more time and I am sure I will recover,’ dismissal may well be reasonable.  Similar considerations will apply at appeal hearings against the dismissal.

For information on long-term sickness absence among employees or any of the other issues raised in this article, contact David Leslie in Lyons Davidson Leeds Employment Team by emailing [email protected] or calling 0113 368 7804.