Long-term sick leave – when can an employer dismiss an employee?

Rory Byrom | 26 Apr 2017

INSIGHTS

Employers may want to take heed of the guidance issued by the Court of Appeal in the recent case of O’Brien v Bolton St Catherine’s Academy in relation to at what time it is appropriate to dismiss for long-term sickness absence.

The main impact of this decision is that employers must ensure they fully investigate all evidence provided by the employee at any stage of the dismissal process – even if received on the day of the appeal hearing – as and when it becomes available.

Background to the case

The claimant was employed at a secondary school as a senior ICT teacher, when, in March 2011, she was assaulted by a pupil. Fortunately, she was not seriously injured and was able to return to school shortly after. However on her return she was diagnosed with anxiety, depression and post-traumatic stress disorder, and began a period of long-term sick leave in December 2011. After more than a year off, the school requested clarification from the claimant as to when they could expect her to return. She supplied a note from her GP saying this was unknown. With this in mind, the school dismissed her.

During an internal appeal by the claimant, her GP supplied a further note stating her return was now imminent. The employer did not take this into account, as they focused on whether it was fair to dismiss her at the time of the dismissal with the evidence that was available then. Accordingly, her appeal was not upheld and her dismissal stood.

The decision

The claimant brought her case to the Employment Tribunal who ruled that her dismissal was unfair and that the claimant had been discriminated against by reason of her disability. It was found that the employer had not adduced sufficient evidence about the adverse impact the absence was having on the running of the school.

However, this was overturned by the Employment Appeal Tribunal who held that the Employment Tribunal had failed to use “common sense” in determining whether the absence of a senior teacher would have an impact on a school.

This decision, though, was itself successfully appealed to the Court of Appeal who ruled that this dismissal was indeed unfair. It was particularly noted that as the dismissal was the product of the combination of the original decision and the appeal process, this composite decision had to be justified.

What can we learn from this?

Although it was held that in this case it was an unfair dismissal, the court made clear that it is not always unfair to decide that the time has come to dismiss an employee who has been absent for a similar length of time; rather, the circumstances, impact and evidence in relation to each long-term absence is key in the timing of the decision to dismiss.

The court emphasised that the impact of the long-term absence on the employer’s business will be a significant factor in determine whether a dismissal is fair. They stated that it would be within the band of reasonable responses to dismiss an employee if the impact is so severe to the disruption of business of the employer. Employers should keep a good written record of the disruptions being caused by the long-term absence of an employee such as the financial impact of extra staff being brought in, or the negative effects of the work load being spread amongst more people.

Furthermore, the court emphasised that the employer should have relied on the second note from the GP. Although the employer was suspicious of the sudden note from the GP saying that the individual was fit to return to work, the existence of the note should have prompted further investigation by the employer such as by their own occupational health advisers.

As noted at the start of this article, the impact of this decision is that employers must ensure they fully investigate all evidence provided by the employee at any stage of the dismissal process – even if received on the day of the appeal hearing – as and when it becomes available.