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Long term sickness and dismissal

Background

 The Claimant was Director of Learning ICT at St Catherine’s Academy (“the Academy”). In 2011 she went off sick suffering from stress, anxiety and depression following an assault by a pupil.

In 2013 the Academy arranged for a formal hearing to consider the Claimant’s capability. The Head Teacher made the case for dismissal and presented the available medical evidence. However, the Head Teacher did not give any details about the effect the absence had on the Academy. The Claimant was dismissed.

The Claimant appealed and presented 2 new documents at the appeal hearing:

  • A fit for work note certifying that she was now fit for work.
  • A letter from a psychologist stating that if the Claimant underwent a new course of treatment she would be well enough to return to work.

Nevertheless, the dismissal was upheld as the evidence was uncertain. There was no corroborative evidence to support the assertion that the Claimant had underwent the recommended treatment and there were concerns that the fit note was an attempt by the Claimant to return to work before she was ready. The panel decided that the Academy had waited long enough and any longer would place a burden on staff and pupils.

The Claimant brought claims for unfair dismissal and disability discrimination.

Decision

The Employment Tribunal found that the Claimant had been discriminated against as a result of something arising in consequence of her disability and that she had been unfairly dismissed. Although the Academy had legitimate aims (the efficient running of the Academy and the need to provide a good standard of teaching), the dismissal was not a proportionate means of achieving a legitimate aim. The Academy had failed to demonstrate any evidence of the negative impact the Claimant’s absence was having on the Academy and it would have been reasonable to ‘wait a little longer’ in light of the Claimant’s evidence at the appeal hearing.

The Employment Appeal Tribunal disagreed but the decision of the Employment Tribunal was reinstated by the Court of Appeal. It agreed with the Employment Tribunal that the Academy should have waited a little longer to obtain evidence to confirm that the Claimant was fit to return to work.

Comment

Employers should always consider the effect that an absence is having on the organisation, be able to produce evidence and cover this when setting out its reasons for dismissal in the dismissal letter. Where information regarding an employee’s fitness for work is produced at an appeal hearing it should be considered carefully even if this means waiting a little longer.

Case reference: O’Brien v Bolton St Catherine’s Academy

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