Three apples, central apple has a bite taken out of it

Long term sick leave – impact on the business

O’Brien v Bolton St Catherine’s Academy confirms that it is important for an employer to in part consider the impact on the business (where an employee is on long term sick leave) if they are considering whether they should dismiss on the grounds of ill-health.

Furthermore, if during an appeal, further evidence comes to light, the Appeal Chair should consider this evidence.

Facts of the case

Georgina O’Brien had been employed as a teacher in 2005. In 2009, following the school becoming an academy, her job title was amended to Director of Learning ICT. On 25 March 2011, she was assaulted by one of the pupils which left her with psychological scarring. Ms O’Brien raised concerns with the school authorities that aggressive behaviour was not being dealt with sufficiently. On 9 December 2011 she was signed off of work initially with stress at work and subsequently anxiety, depression and PTSD.

Ms O’Brien did not return for a year and so she was dismissed for medical incapacity effective from 31 January 2013. Ms O’Brien appealed the decision but it was rejected. She brought claims for unfair dismissal and for her treatment throughout her employment.

Decisions

The Tribunal dismissed the claims for automatic unfair dismissal and direct disability discrimination. However, it upheld the claims in relation to ordinary unfair dismissal, for discrimination arising from a disability and wrongful dismissal. The Tribunal found that the dismissal was disproportionate because the academy “had adduced no satisfactory evidence about the adverse impact which her continuing absence was having on the running of the school”. The Tribunal also held that the academy had acted unreasonably in its decision to dismiss because a “reasonable employee” would have “conducted the appropriate balancing exercise” and therefore the dismissal was unfair.

The academy appealed this decision to the Employment Appeal Tribunal who referred the case back to be heard by a fresh tribunal. The academy succeeded on seven of their eight grounds of appeal, but they were satisfied that the Employment Tribunal had given sufficient reasons as to why it reached the conclusions that it has reached. However, Ms O’Brien appealed this decision to the Court of Appeal.

The Court of Appeal reversed the decision of the Employment Appeal Tribunal stating that the original decision contained no error of law.

What can employers learn from this case?

This case is a reminder that employers should support employees that are on long term sick to ensure that they are properly managing any long term absences. If an employee is determined as disabled (for the purposes of the Equality Act 2010), employers should consider any reasonable adjustments to help the employee return to work. Finally, an employer should also make sure that it follows its own internal processes properly when considering dismissing an employee.

Contact our specialist employment & HR team

For more information about this case and how our HR consultancy team can support your business, please contact Bex Sinclair, Head of the HR consultancy team, or contact us online