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Sickness Absence – Have You Waited Long Enough?

15 April, 2017

After six years’ service at Bolton St. Catherine’s Academy, Ms O’Brien was assaulted by a pupil in March 2011 causing her to feel unsafe and vulnerable. It was not until December that year that Ms O’Brien took sickness absence due to stress, anxiety and depression, although her own GP had not certified this, but only recommended treatment for PTSD.

Ms O’Brien’s absence lasted over a year and the School commenced a formal capability process in January 2013. The medical evidence received was unclear, especially as to the nature of her illness and longevity of her absence. St Catherine’s terminated her employment, justifying it on the basis that no medical evidence could support the employee’s anticipated return of ‘April 2013’.

Once April 2013 arrived, Mrs O’Brien declared a significant improvement in her health having taken the GP’s recommendation for PTSD treatment and produced a ‘Fit for Work’ note. She appealed the School’s termination decision, stating that she was fit to return.
The termination was upheld on appeal as the Academy felt unconvinced of the improved mental health due to insufficient medical evidence. It was also felt that Ms O’Brien would not be capable of dealing with the student who was involved in the previous incident.

Ms O’Brien claimed unfair dismissal and discrimination. The employment tribunal found that Ms O’Brien had been unfairly dismissed, as the School should have waited “a little longer” and sought to receive reliable medical evidence on her mental state in April 2013, given the positive view regarding a return that Ms O’Brien herself had voiced.

The tribunal also found that the School had discriminated against Ms O’Brien for a reason arising from her disability, which was terminating her employment due to her sickness absence. The School argued that it was necessary to terminate due to cost implications and the need to provide good quality teaching but the tribunal didn’t see this as a proportionate means of achieving a legitimate aim as it couldn’t see any adverse impact on the School. This discrimination in turn fed into the unfairness of the dismissal.

Following further appeals and remits, Lord Justice Underhill ultimately concluded that the School had unfairly dismissed Mrs O’Brien as well as discriminated against her mental disability. He went on to agree with the original tribunal that the school should have “waited a little longer” before prematurely dismissing the employee and should have sought further medical clarification.

This case provides key guidance for any employer that is experiencing lengthy sickness absence. Employers must receive up to date medical information and undertake a robust sickness capability procedure prior to terminating an employee on long term sick.

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