Prove it! The evidential burden of justifying disability discrimination

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Every employer contemplating the dismissal of a disabled employee on long term ill-health grounds will ultimately face a rather thorny question: Do we have to wait any longer for the employee to return to work? Here, Pritti Bajaria, a solicitor at didlaw outlines what employers need to know.

This is a tough one.  At a bare minimum, the employer will first have to consult with the employee and obtain up-to-date medical evidence, before having the faintest hope of safely reaching a decision that enough is, in fact, enough.

The Court of Appeal has examined this very question in the recent case of O’Brien v Bolton St Catherine’s Academy.

The facts

Georgina O’Brien was a long-serving Head of Department at Bolton St Catherine’s Academy.  Whilst at work in March 2011, Ms O’Brien was assaulted by a pupil.  Ms O’Brien only had a short period of time off in the immediate aftermath, yet she remained very shaken by the incident and in December 2011, commenced a period of long-term sick leave which ended in her dismissal on the grounds of incapacity in January 2013.

At the date of her dismissal, Ms O’Brien had been absent from work for approaching 14 months with anxiety, depression and PTSD.  During this time, she and her GP had not co-operated fully with the Academy about the state of her health and prognosis.  However, at her disciplinary appeal hearing, Ms O’Brien produced a fit note from her GP and a psychiatrist’s letter as evidence that her health had improved and that she was fit to return to work imminently.

Nevertheless, the Academy upheld the dismissal, rejecting the new medical information on the basis that they found it unconvincing and contradictory.  The Academy considered that they could not sustain Ms O’Brien’s on-going absence and, since they could not guarantee the on-going safety of her mental health if she came back, there was a chance she may suffer a relapse.

Ms O’Brien brought claims against the Academy for unfair dismissal and disability discrimination.

The Court of Appeal’s decision

The Court of Appeal held that Ms O’Brien’s dismissal was both unfair and discriminatory.

The Court found that the Academy had not produced satisfactory evidence to show that Ms O’Brien’s absence was having an adverse impact on the running of the school.  The Academy was unable to show why it was unable to wait a little longer, particularly given that Ms O’Brien was telling them that she was fit to return and had produced evidence (however unsatisfactory) in support.

The key point was that at the time of the disciplinary appeal hearing, there was some evidence that Ms O’Brien was fit to return.  It was therefore disproportionate and unreasonable of the employer not to wait a little longer to obtain its own occupational health advice before dismissing her, including advice on the chance of a relapse.

Blurred lines

This judgment highlights the blurred lines between the tests for discrimination arising from disability and unfair dismissal in the context of long-term ill health.

The Court acknowledged that whilst the tests for discrimination arising from disability and for unfair dismissal are different, it would be “a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled”.  Most of the time, the end result will be the same.

In the Court’s view, the law is “complicated enough” without tribunals having to judge the dismissal of a disabled employee by one standard for the purpose of unfair dismissal and by a different standard for discrimination law.

“Too little, too late”?

The Court of Appeal held this was a “borderline case”.  Not all three judges were agreed.

The dissenting Judge’s opinion was that the “last-minute” evidence as to fitness produced by Ms O’Brien at her disciplinary appeal was “wholly unsatisfactory”.  Too little, too late.  In the circumstances, it was “unrealistic” to expect the Academy to produce specific evidence of the adverse impact to the school of the extended absence of such a senior member of staff.

The dissenting Judge was sympathetic to the Academy’s position given that Ms O’Brien had not been the most co-operative of employees up until that point and stated that the evidence of her fitness could “properly be treated with scepticism”.  “It thus could perfectly properly be concluded, some 17 months on since the appellant first went off sick, that enough was enough here”.

What does this mean for employers?

Be aware. Dismissals for long-term sickness absence come with the risk of unfair dismissal and disability discrimination claims.

Be fair and just. You are entitled to some finality. The Court of Appeal is with you on this!  You don’t have to hold a job open forever.  The law permits you to dismiss employees who have no realistic prospect of returning to work, provided that you follow a fair procedure and can justify your decision.

Be patient

If your employee asks for a little more time, or says he/she is fit to return and presents evidence in support, you must always listen.  You may be unconvinced by the evidence.  You may even feel that the evidence is in some way contradictory, dubious, or “too little, too late”.

Perhaps, like Ms O’Brien, your employee has been uncommunicative or obstructive with you up to now and you may (understandably) have found this very frustrating. Even so, don’t simply ignore the request or discount the new evidence without good reason. The smart move will always be to obtain your own up-to-date medical opinion so that you can judge the matter for yourself.

Be ready

If you come to the decision that enough is enough, then make sure that you can justify that decision. Remember: the question of how long an employer is required to wait for a long-term sick employee to return to work is notoriously fact-sensitive.

So, be prepared to explain why you had to dismiss that employee with that particular illness from that job at that particular point in time. Ensure that you have evidence to support your decision, no matter how obvious it may seem to you.

For instance, how has the absence had a detrimental impact on the business, other staff, service provision, customers/clients/pupils, or caused any other significant difficulties at all?  What have you done to mitigate these difficulties and why didn’t that work? Why is this ongoing situation unsustainable for the business?

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