When does it become fair to dismiss an employee for long term sickness absence?

We are often asked what is the best approach to dealing with an employee who has been on extended sick leave. In general, it is necessary to establish that the employee is not going to be fit to return to work (on a full or partial basis) for the foreseeable future. Without this there is the risk that the employee could contend that they were about to return when they were dismissed or there could be a sudden improvement in condition which might curtail the expected absence. Of course, that assessment requires medical evidence so the process normally involves engaging the services of an occupational health consultant. Employers also need to be aware of potential disability issues.

These issues were recently considered by the Court of Appeal in O’Brien -v- Bolton St Catherine’s Academy. Ms O’Brien commenced work with the employer as an ICT teacher in 2005. In 2011 she was assaulted by a pupil. She did not suffer severe physical injuries but she was very shaken. On her return to work she was concerned that the school was not taking adequate steps to protect her. In particular she was dissatisfied by a refusal to reinstate a policy under which pupils who assaulted staff were automatically excluded.

In December 2011 she went off sick with a diagnosis of stress at work. After more than a year off work she was dismissed on 31 January 2013 on the ground of medical incapacity. her appeal against the decision to dismiss was rejected. Ms O’Brien presented a complaint of unfair dismissal to an employment tribunal. She also claimed that her illness constituted a disability and that she was either dismissed in circumstances giving rise to direct disability discrimination or that she suffered unfavourable treatment on account of her disability. She also claimed wrongful dismissal (breach of contract) because the school paid her in lieu of notice when it was not entitled to do so, as well as claiming arrears of holiday pay.

Her claims for automatic unfair dismissal and direct discrimination failed, as did the claim for holiday pay. However, she was found to have been unfairly dismissed and subjected to less favourable treatment on account of her disability. There was also a finding of wrongful dismissal.

In June 2015 the Employment Appeal Tribunal (EAT) found in favour of the school (save in respect of the relatively minor claim for wrongful dismissal). Ms O’Brien appealed to the Court of Appeal and judgment was handed down on 15 March 2017. Lord Justice Underhill considered the relevant law. He noted that evidence had been presented on behalf of Ms O’Brien at the hearing of the initial appeal against dismissal indicating that, according to an associate psychologist, there was, as at February 2013, a diagnosis of mild depression and severe anxiety. There was also a reference to post traumatic stress disorder but it was unclear whether this was in fact diagnosed. She contended that she was fit to return to work. In its decision on appeal the school determined that Ms O’Brien was not fit to return to work because her condition had not been fully treated and accepted that she was disabled within the meaning of the Equality Act 2010.

Dismissal based on sickness absence can be complicated

In Monmouthshire County Council -v- Harris the Employment Appeal Tribunal was asked to review a finding in the Cardiff Employment Tribunal that Mrs Harris was unfairly dismissed and that the dismissal was an act of disability discrimination. At a remedy hearing in September 2014 she was awarded £238,216.37. The Employment Appeal Tribunal proceeded on the basis of determining, in respect of the unfair dismissal, whether the Employment Tribunal erred in regarding procedural defects as sufficient to make the dismissal substantively unfair and whether there was a failure to consider the Council’s substantive grounds for dismissal. It also considered whether the Tribunal erred in failing to consider, in the context of discrimination, whether dismissal was a proportionate means of achieving a legitimate aim and whether or not it took into account irrelevant considerations.

Mrs Harris had worked for the Council since 1992. Latterly she was suffering from depression, sinusitis, asthma and an underactive thyroid. Accordingly she was disabled for the purposes of the Equality Act 2010. At a time prior to autumn 2010 and following occupational health advice she had been permitted to change her working arrangements to include working from home. Thereafter a new line manager, Mr Austin, was appointed. In January 2013 Mrs Harris complained that Mr Harris was not supporting her working from home and asked to return to her previous arrangements. Thereafter she commenced a period of sickness absence and did not return to work.

She attended meetings with HR in March and May 2013. On 28 May Mar Austin met with HR and it was decided that Mrs Harris’ employment should be terminated. She was notified by letter dated 4 June. the dismissal was due to take effect on 31 July. She appealed and the appeal was heard on 4 July. She objected to a lack of consultation, raised concerns about her working relationship with Mr Austin and complained that the decision to dismiss was based on an out of date report. The appeal was rejected.

In June and July she applied for ill-health retirement but this was declined. A medical opinion obtained in October 2013 concluded that although she was still unfit for work and likely to remain so for the foreseeable future, it could not be said that she would be permanently unfit until the normal retirement age.

At the resulting Employment Tribunal it was noted that the reason for dismissal was “absence which arose due to the claimant’s medical condition (a disability)”. There was inadequate warning of the possibility of dismissal and inadequate consultation. In addition there was a failure to make reasonable adjustments which also went to the question of the fairness of the employer’s behaviour. Mr Austin had effectively prevented Mrs Harris from maintaining the home working arrangements from January 2013. There was also a failure to take into account the updated reports that had been obtained for the ill-health retirement application. The fairness of the dismissal was also tainted by the active participation of Mr Austin. As for the discrimination claim the Council failed to make reasonable adjustments on the basis that if working from home was properly implemented from January 2013 there may have been no ongoing sickness absence at all. The Council appealed.