Dismissal for long term sickness absence

Ms O’Brien was a teacher and director of Learning ICT at St Catherine’s Academy.  She was dismissed on grounds of medical incapacity after a lengthy period of absence due to sickness.  The absence arose from her being assaulted by a pupil at the school where she suffered injury and an acute stress reaction, which was considered a disability under the Equality Act 2010. She had been off sick for 14 months with no immediate prospect of return, and her employer chose to terminate her employment. An earlier attempt at a return to work had resulted in a further relapse, when she saw the pupil who assaulted her.  This was a relevant factor in the Academy’s decision to dismiss her.

Ms. O’Brien produced new medical evidence at the internal appeal hearing, and asserted she was at that time fit to return to work full time.  Despite this, the appeal panel confirmed her dismissal. At first instance it was held her dismissal was unfair, and discriminatory on grounds of her disability.  At the EAT, it was held that Ms O’Brien’s dismissal was fair and non discriminatory.

The case went to the Court of Appeal where Ms O’Brien’s appeal was allowed.  Lord Justice Underhill commented that the case was “near the borderline” because of the length of absence and the unsatisfactory nature of the evidence about when Ms O’Brien might be fit to return to work, but ultimately that it was open to a new tribunal to consider that it was disproportionate/ unreasonable for the Academy to have disregarded evidence about when Ms O’Brien may be fit to return to work, without at least a further assessment by its own occupational health advisers.

Dismissals on grounds of long term sickness absence are always difficult to manage, particularly where there is an underlying condition which may be a disability.  Tribunal and courts will expect an employer to show that it is no longer reasonable to continue to wait for the employee to return, and that it has engaged in a fair, thorough and supportive process with the employee, looking to make reasonable adjustments, where possible, and seeking medical input to inform any decisions about an employee’s ability to return to work.

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