LEGAL CORNER: Dismissal after long-term absence was unfair

26th May 2017


Employers often struggle to deal with cases where employees have been absent from work for a long period of time. The difficulties they raise were exemplified in the recently decided case of O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145.

Mrs O’Brien was employed by the Academy as Director of Learning. In March 2011 she was assaulted by a pupil. Fortunately, her physical injuries were not significant and she was only absent for a short period. However, she was very shaken by the incident and felt unsafe in parts of the school. She felt that the Academy did not take the assault sufficiently seriously, and she was unhappy that they did not reinstate an earlier policy under which pupils who assaulted staff were automatically excluded.

She was, therefore, absent from December 2011, initially with a diagnosis of stress at work. She was subsequently diagnosed with depression and post-traumatic stress disorder. The Academy arranged for Mrs O’Brien to have Cognitive Behavioural Therapy. A March 2012 referral to Occupational Health suggested that a considerable amount of work would be required to ensure that Mrs O’Brien felt adequately supported and that she may not be able to return to work. They did not feel that she had improved by the time she was reviewed in August 2012. Mrs O’Brien was invited to a meeting in November 2012, but she did not attend as she felt that the meeting would only upset her. She was asked to complete a questionnaire, and in response to a question on when she might be able to return to work, Mrs O’Brien said that it was impossible for her to answer.

The Academy progressed to a formal medical incapacity meeting in January 2013. Mrs O’Brien stated that she had started therapy for PTSD, and hoped to return to work in April, although the therapist could not confirm this until the conclusion of her therapy in April. The panel decided to dismiss Mrs O’Brien due to the length of time she had been off work with no substantive progress, and the lack of prognosis to indicate a return to work.

Mrs O’Brien appealed. At her hearing on April 10, 2013, she produced a fit note, signed the day before, indicating that she was able to return to work. She maintained she had had enough treatment to facilitate a full-time return to work. The appeal panel considered the evidence but decided to uphold the decision to dismiss as they felt that the information was inconsistent. They considered that the fit note was designed to get Mrs O’Brien back to work before her condition had been fully treated. They felt that the absence of 14 months was too great a burden for the Academy.

Mrs O’Brien brought a claim in the employment tribunal for unfair dismissal and discrimination arising from disability. She succeeded on the basis that having provided evidence that she was fit to return to work, it was not reasonable for the Academy to dismiss her without at least obtaining its own evidence to confirm whether her assertions were true or not. The Employment Appeal Tribunal disagreed and decided that the case should be heard again by a fresh tribunal. Mrs O’Brien appealed that decision to the Court of Appeal. By a majority, they decided in her favour and restored the decision of the tribunal. They considered that the case was near the borderline, given the length of Mrs O’Brien’s absence, and the nature of the evidence about when she could return. However, ultimately it boiled down to the fact that when faced with some evidence at the appeal stage that she was fit for work, it was unreasonable to reject it without further investigation.

The Court of Appeal did, however, agree that it would not necessarily be unfair for an employer to want certainty, particularly in cases where an employee is using the argument “give me a little more time and I’m sure I will recover”. However, the employer also needed to consider the effect of the absence on its business, and there was no evidence that this had been considered in Mrs O’Brien’s case. An employer needs to make sure that it has acted reasonably at every stage of the process, including the appeal, in order for a dismissal for long-term absence to be fair.

Safia Tharoo, Barrister, 42 Bedford Row, London

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