Managing Long-Term Sickness: Disability and Dismissal
Thu 11 May 2017
O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145
Long-term sickness can be a challenging issue for employers and employees alike. This is all the more so given potential overlap between the Employment Rights Act 1996 (“ERA 1996) and the Equality Act 2010 (“EA 2010”) where the illness qualifies as disability under section 6 of the latter legislation. In such circumstances, a prudent employer will be keen to avoid claims of both unfair dismissal and discrimination arising from disability. When a decision is made to dismiss an employee on the basis that they are no longer capable of fulfilling the role, the employer will need to act both fairly and reasonably, and proportionately to a legitimate aim, as explored in the recent case of O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145.
Ms O’Brien, a teacher, was assaulted by a pupil and left badly shaken. Nine months later, she went off sick, initially under a diagnosis of stress. After over a year of sick leave, she was dismissed. On internal appeal, school’s panel upheld the dismissal on the basis of the lack of a positive prognosis and concerns that the incidents causing the condition could occur again, even though Ms O’Brien informed the meeting that she was ready to return to work immediately. Notably, no reference was made to the impact of her absence. Ms O’Brien brought claims under both the ERA 1996 and the EA 2010, contending that she had been unfairly dismissed and had suffered discrimination arising from disability.
The case progressed to Court of Appeal, where Underhill LJ made a decision with three key points of significance.
Firstly, he accepted the Tribunal’s finding that the school should have ‘waited a little longer’ for confirmatory medical evidence when Ms O’Brien told the appeal panel that she was fit to work. The Court of Appeal upheld the Tribunal’s finding that it was disproportionate to dismiss her, though Underhill LJ did appear to distinguish a situation in which Ms O’Brien would be fit ‘soon’, rather than immediately.
Secondly, the school argued that the Tribunal was wrong to conclude that discrimination and unfair dismissal went hand in hand. Underhill LJ took a different view, and stated that in spite of the differences in language between the ERA 1996 and the EA 2010, it would be ‘a pity’ if there were any real distinction, particularly as he felt the law to be sufficiently complicated already.
Thirdly, Underhill LJ added that, though perhaps not a strict requirement, it is not unreasonable for a tribunal to expect evidence of the impact of long-term sick absence as justification for dismissal, though often this will merely be a general and obvious statement.
While the conclusion was favourable for Ms O’Brien, the wider application of these ideas would offer a useful degree of consistency for employers and employees alike. The judgment sensibly recognises that the issues of the fairness of a dismissal, and whether it is proportionate with an eye to discrimination are closely-linked questions. Nevertheless, it remains a finely balanced exercise to determine whether it is appropriate to dismiss an employee who has been long-term sick. Therefore in such cases, an evaluation of the impact of the employee’s absence should be undertaken, and if it is claimed that a prognosis shows a real sign of imminent change, it may be wise to give it full consideration and take advice.