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.
At the EAT hearing His Honour Judge Serota had considered the impact on the school of such a long absence:
One does not need to be a management consultant to see that in a large school, which I have referred to as having problems, the absence of the head of an important department holding a leadership role for 17 months, with her teaching responsibilities having to be covered by having to make additional payments to a part-time teacher and also her leadership and development and administrative roles having to be covered by colleagues (if covered at all), would have had a significant effect on the school especially in these times of austerity and shortage of resources. Yet there is no mention of this at all by the Employment Tribunal. It is clear that Mrs Wilkinson, who was found by the Employment Tribunal to be sympathetic to the Claimant, had come to the conclusion that enough was enough.
Underhill LJ quoted this part of the judgment, adding:
I have some sympathy with that reaction. More generally, the proposition that it was unfair of an employer to decide, after a senior employee had already been absent for over twelve months and where there was no certainty as to when she would be able to return, that the time had come when the employment had to be terminated, seems to me to require very careful scrutiny. The argument “give me a little more time and I am sure I will recover” is easy to advance, but a time comes when an employer is entitled to some finality. That is all the more so where the employee had not been as co-operative as the employer had been entitled to expect about providing an up-to-date prognosis…and where the evidence relied on at the appeal hearing was only produced at the day of the hearing and was not entirely satisfactory.
After further consideration of the law and evidence he reached his conclusion:
For the reasons given above I do not believe that there was any error of law in the decision of the Employment Tribunal, and I would allow the appeal. The case can fairly be regarded as near the borderline because of the length of the Appellant’s absence and the unsatisfactory nature of the evidence about when she might be fit to return. But the essential point is that by the time of the appeal hearing there was some evidence, albeit not wholly satisfactory, that she was now fit to return; and in my view it was open to the Tribunal to hold that it was disproportionate/unreasonable for the school to disregard that evidence without at least a further assessment by its own occupational health advisers.
Lord Justice Davis disagreed, noting the lack of co-operation on the part of Ms O’Brien and describing the medical evidence put forward at the appeal hearing as “demonstrably half-baked”. However, Master of the Rolls Sir Terence Etherington agreed with Underhill LJ so the appeal was successful and the matter was remitted to the tribunal for assessment of the award to be made.
Ultimately, the judgment endorses the need to rely on clear and unequivocal medical evidence. The potential catch 22 for employers is that the evidence required to support a medical incapacity dismissal will often also establish a protected disability. As always, the advice is to contact us before acting because early mistakes can prove to be very expensive.