Questions relating to unfair dismissal and their relationship with long term sickness absence are common for employment lawyers. Given how frequently such queries arise, our Head of Employment Yunus Lunat tackles this problematic issue below, in the context of a pertinent case.

Earlier this year, the Court of Appeal gave judgment in the case of O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145.

Ms O’Brien, a teacher, was absent from work for over a year due to stress and was dismissed as a result (on the grounds of medical incapacity). This followed an incident in which she had been attacked by a pupil, the consequences of which, it was said, had resulted in her lengthy absence.

The school had initially asked for an update as to her progress, which resulted in Ms O’Brien and her GP essentially the school to each other. An internal appeal hearing took place in which Ms O’Brien produced a Fit Note from her GP, which said that she was now able to return to her duties.

The Court of Appeal found not only that the dismissal was unfair, but that it also amounted to disability discrimination under the Equality Act.

In law, there are two separate tests as far as long term sickness dismissals are concerned (‘reasonableness’ under the Employment Rights Act 1996 for the unfair dismissal, and ‘proportionality’ under the Equality Act.) What the Court expressed was that in this context there is no material difference between them, even if the wording of the respective statutes differs.

It is important to understand that the judgment does not mean that an employer is unable to dismiss someone who has been off sick for a lengthy period- the common misconception that an employee with a fit note (signing them off) cannot be dismissed is just that. An employer is not expected in law to wait for an employee on long term sick leave to recover.

What is clear however is that an employer needs to be conscientious in their approach. If the employee is able to put forward some evidence that they are able to come back, this requires careful consideration. If they take issue with the employee’s evidence, they should assess it properly- and obtain their own further evidence as required

In this type of case, employers need to be able to show why they cannot wait- if they are asserting that the long term sickness absence is having an adverse effect upon the organisation, they need to back this up with facts and figures and demonstrate the effect upon the business.

For advice on any of the issues raised within this article, please contact Yunus on 0113 284 5023 or at Same day appointments are often available.

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