Ms O’Brien was a teacher at Bolton St Catherine’s Academy since 2005. In March 2011, she was assaulted by a pupil. This left Ms O’Brien shaken and felt unsafe in parts of the schools. She was subsequently diagnosed for stress at work, anxiety, depression and post-traumatic stress disorder.
After being absent from work for over a year, she was dismissed for medical incapacity. At the time there was nothing to indicate Ms O’Brien was likely to return to work in the near future.
The dismissal was upheld on appeal despite Ms O’Brien producing a fit note on appeal from her GP that she could return to work shortly.
Claims were brought against the Academy for unfair dismissal and disability discrimination.
Ms O’Brien won her employment tribunal claims for discrimination arising from disability and unfair dismissal. However the decision was overturned by the Employment Appeal Tribunal.
The Court of Appeal acknowledged that Ms O’Brien’s case that her dismissal could not be justified was very weak, and any finding that such a dismissal was unfair would require considerable scrutiny.
But, at Ms O’Brien’s appeal hearing, she produced evidence that she was fit to return to work imminently, and under these unusual circumstances, the failure of the Academy to take this new evidence into account rendered the dismissal unfair, although the Court of Appeal noted this decision was near the borderline.
This is a very useful case for employers dealing with long-term sick leave. The Court of Appeal made it clear that employers are not expected to wait forever for an employee to recover from illness and dismissal is a valid possibility when a return to work is not imminent.
It is therefore a good idea for employers to have a written record of the disruption being caused to the Company as a result of the employee’s absence e.g. extra work for colleagues.
The other key warning for employers is to carefully review all the medical evidence during the whole sickness absence management process, which includes any evidence which comes to light between the original decision to dismiss and any appeal hearing.
If you have sickness absence issues at your place of work, contact Sally Morris at sally.morris@mfgsolicitors.com or on 01905 734032.
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