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Dismissing staff on long-term sick leave is not necessarily unfair, says Court of Appeal

A case involving the dismissal of a teacher on long-term sick leave has led to clarification from the Court of Appeal over when such actions might be carried out fairly, particularly when it is uncertain when or if the employee will be able to return to work.

Claimant Georgina O’Brien won her case on a majority ruling on appeal, after she was dismissed on the grounds of capability, but the subsequent ruling in the ‘borderline’ case offers guidance for employers grappling with similar issues.

O’Brien brought the case after being assaulted by a pupil in March 2011 when she worked at Bolton St Catherine's Academy in Greater Manchester as director of learning and ICT. She suffered an acute stress reaction and, although not seriously injured physically, was “very shaken” and "felt unsafe in parts of the school”. The claimant also believed the school was not taking aggressive behaviour by students seriously enough.

O’Brien returned to work for a couple of short periods but began a period of long-term sickness absence in December 2011.

After being absent for 14 months, O’Brien hoped to return on a permanent basis by the end of April 2013. At this time, the school sought clarification as to when she might be able to return, and what adjustments it could make to facilitate it.

Bolton St Catherine's had difficulty getting this information, and O’Brien refused to attend a meeting to discuss her prognosis because she felt the meeting might ‘upset’ her.

O’Brien then responded to key written questions about timescales and barriers to a return to work by referring the school back to her GP, who did not feel confident about when she might be able to return to work.

The claimant was dismissed after a formal medical incapacity hearing under the school’s sickness absence management procedures, on the grounds of capability.

A tribunal decided that O’Brien suffered discrimination arising from her disability, and that her dismissal was not a proportionate means of achieving a legitimate aim. It also found that Bolton St Catherine's had failed to produce evidence of the adverse impact of the claimant’s absence on the school’s business. 

This was overturned by the Employment Appeal Tribunal, which led to the most recent appeal hearing. Though the original tribunal decision was restored, Lord Justice Underhill’s ruling delved further into the issue of long-term sickness, including the concept that “there comes a time when an employer is entitled to some finality”.

When 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, said the ruling. It also said that the business impact of ongoing absence must be a “significant element” in deciding if dismissal is justified.

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.

Paul McAleavey, senior associate at law firm Brahams Dutt Badrick French, emphasised that employers do not have “an easy task” in managing long-term absence. “Simple steps employers can take are to comply with their own sickness management processes, involve occupational health, engage with the employee, try to uncover the reasons for the absence and the likely prognosis, and assess whether there is a duty to make adjustments to help the employee come back to work,” he said.

Jolyon Berry, partner at law firm Birketts, advised that to find the balance between avoiding disruption to the business and taking care of employees on long-term sick, employers need to “take control” of the situation early. “Why wait until an employee has been off for six weeks before thinking about how to manage the situation?” he asked.

In a statement, Bolton St Catherine's said: “This has been a very complex and lengthy process following the reversal of the previous ruling in our favour. The academy was advised and guided by our legal and human resource partners at all times, including on the technical points on which the appeal was overturned.”

The case will now return to the employment tribunal to consider O’Brien’s compensation.

Added: 23-03-2017
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