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Employee fairly dismissed for failing to return to work after long-term sick leave

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An employee on long-term sick leave has been fairly dismissed for failing to return to work after a reasonable period of time.

The judgment will provide guidance on when employers can fairly dismiss an employee on long-term sick leave.

The case centres on Ms O’Brien, the now-former head of a department at a school.

Ms O’Brien was attacked by one of her pupils, and although the incident itself did not cause any lasting physical injuries, she said the attack made her feel unsafe in some parts of the school.

Ms O’Brien later went on leave due to stress.

The Court of Appeal heard how the teacher had taken more than a year off work, and how the school had sought clarification as to when she might be able to return to work, and how they could facilitate her return.

The school said they had not been able to reach out to Ms O’Brien in person, and instead was referred to her GP, who had doubts about her returning to work.

This prompted the school to dismiss Ms O’Brien on the grounds of the school’s sickness absence management procedures.

Agreeing with the employer, the Court of Appeal said the school should not have to cope with Ms O’Brien’s absence any longer.

Lord Justice Underhill said: “It is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty as to when the employee will be able to return.

“While an employee can easily advance the argument ‘give me a little more time and I am sure I will recover’, there comes a time when an employer is entitled to some finality.

“The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified.”