Q: An employee has reached the appeal stage of an ill-health dismissal and now we’ve been told they are fit to return to work. If we still dismiss them can they bring a claim for discrimination?
Robert Whitaker, Partner and Head of Business and Employment at Tees, answers…
In the case of O’Brien v Bolton, the Court of Appeal has given guidance on what happens if the employee becomes fit to return to work at the appeal stage. In what may be considered a “borderline” decision, the Court concluded that it was unfair to dismiss an employee who demonstrated some fitness to return to work after ill-health but gave important guidance on factors that employers should consider.
Ms O’Brien worked as a teacher and was head of a department at Bolton St Catherine’s Academy from 2005. In March 2011 she was assaulted by a pupil. Although the physical injuries were not serious, she had some time off work but upon return she suffered long-term sickness diagnosed as anxiety, depression and post-traumatic stress disorder.
After being absent from work for over a year, Ms O’Brien was dismissed by the school for medical incapacity. She subsequently brought claims for discrimination arising from disability under the Equality Act 2010 and unfair dismissal.
It was agreed by the parties that Ms O’Brien was suffering from a disability at all material times. The Employment Tribunal (ET) held that Ms O’Brien had been unfairly dismissed and discriminated against on the grounds of disability.
However, on appeal, the Employment Appeal Tribunal (EAT) disagreed and allowed the appeal in favour of the school. The Court of Appeal then overturned the EAT’s decision and found in favour of Ms O’Brien, stating that by the time of the internal appeal against dismissal there was some evidence that Ms O’Brien was fit to return to work.
In Ms O’Brien’s case, it was unreasonable and discriminatory of the school not to have waited longer to ascertain whether she could return to work in the near future because evidence was presented at the appeal hearing with the school that she was fit to return at once.
Even though the evidence was not satisfactory, it should have been investigated and considered. Lord Justice Underhill highlighted that the school should have at least had a further assessment carried out by its own occupational health advisers.
Lord Justice Underhill stated that it is not necessarily unfair for an employer to dismiss an employee who has been absent for 12 months with no certainty as to when he/she will return. The Court of Appeal also commented (at paragraph 37 of the judgment) that:
“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.”
The case highlights that the severity of the impact on the employer of an employee’s continued absence will be a significant factor when determining the point in time at which the dismissal becomes justified.
An ET will require evidence of the impact that the long-term absence is having on the business.
A critical point also arising from the case is that if updated medical evidence is produced at any appeal hearing against the decision to dismiss, this should be carefully reviewed. Employers must be able to show it was reasonable to dismiss when they decided to do so, and should demonstrate they have made an informed decision.
The decision to dismiss
It is interesting to note that, unusually, this case was borderline and was decided by a majority in the Court of Appeal. Lord Justice Davis disagreed with Lord Justice Underhill. His view was that there was evidence showing that Ms O’Brien had not been fully cooperative in relation to providing medical evidence and that the school had experienced significant disruption due to Ms O’Brien’s absence.
Whether or not the decision to dismiss was correct will depend on individual facts and all the information the employer has, and can be expected to have, at the time of making the decision to dismiss.
Hints and tips for employers
Record: Employers should keep a written record of events and timeline of disruption which is caused to the business and a careful log of the additional work which colleagues are having to complete in order to cover the absence. Records of how much money has been spent on additional staff will also be useful.
Explain: The above information should be included in the dismissal letter because this is a useful way to show that the impact of the employees absence has been assessed
Review: Carefully check all medical evidence during the period of sickness including any which comes to light after the original decision to dismiss. Do not ignore it!
Plan: Ensure you have in place a clear and comprehensive sickness policy.
Communicate: Keep in touch with the employee regarding their sickness and when they believe they should be able to return to work on a consistent basis.
Consult: Consider whether any reasonable adjustments can be made or whether there is alternative employment which can be offered. Remember, if the adjustment is reasonable it is obligatory for disabled employees, subject to PCPs.
Ensure: Check that any decision is made and communicated only following appropriate investigation and that the employer can demonstrate they have made an informed decision. Employers making assumptions or basing decisions on incomplete or old information will do so at their peril.