Long term absence leads to long running employment dispute

News Article

A recent Court of Appeal hearing, described by the judges themselves as a ‘borderline case’, has overturned a long running dispute over an employer’s right to dismiss a worker on long-term sick leave.

The case of O’Brien v Bolton St Catherine’s Academy, involved Ms O’Brien, a head of department, who initially took a short period off sick after suffering minor injuries when she was attacked by a pupil.

Ms O’Brien returned to work but claimed she felt unsafe and was unhappy with the school’s alleged lack of action regarding aggressive pupils. She later went on long-term sick leave, citing stress.

After more than a year off work, Ms O’Brien’s employer attempted to discuss with her when she might feel able to return to work and whether any adjustments might be made to aid the renewal of her work duties.

Ms O’Brien stated that she could not attend a meeting to discuss matters because she felt this might prove to be too upsetting and instead, at the school’s suggestion, provided  feedback via a written questionnaire. However, certain key questions regarding timescales and barriers to recommencing work duties were left unanswered, with Ms O’Brien instead referring the school back to her GP.

As no evidence had been provided to indicate a return to work was “likely in the near term,” a formal medical incapacity hearing, in line with the school’s sickness absence management procedures, decided to dismiss Ms O’Brien.

Ms O’Brien subsequently produced a fit note from her GP stating that her return to work was imminent but despite this an internal appeal upheld the initial dismissal.

Ms O’Brien took the school to an Employment Tribunal and won her case for discrimination arising from disability under the Equality Act and unfair dismissal.

However, the decision was later overturned by the Employment Appeal Tribunal, which ruled that matters had gone too far in expecting the employer to cope with her absence any longer.

In the latest legal twist, the Court of Appeal has now restored the employment tribunal’s original decision.

Lara Murray, an Associate and employment law expert with Palmers, said: “This was an unusual ruling because the judges were not in complete agreement and was by majority.

“One of the judges felt that 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. His view was that, 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.

“Despite this, the Court of Appeal decided, on balance to rule against the school on the basis that once the school had received the GP fit note, it was wrong to dismiss Ms O’Brien without obtaining additional medical evidence.

“Although the school, ultimately lost this case, the court did underline the fact that employers cannot be expected to wait indefinitely for an employee to return to work.

“The issue of dealing with long term sick leave can be fraught with issues and employers would be advised to seek expert legal advice to ensure their actions are compliant and not likely to end in a tribunal hearing.”

For information on all aspects of employment law including how to deal with long term employee absences, please contact us.