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18th April 2017

Tribunal Tale – School should have waited longer before dismissing employee for long-term absence

In O’Brien v Bolton St Catherine’s Academy, the Court of Appeal (CA) overturned a decision of the Employment Appeal Tribunal (EAT) and made a finding of both unfair dismissal and disability discrimination in relation to a teacher being dismissed after being absent for over a year.

Ms O’Brien was assaulted by a pupil in March 2011, which led to her feeling stressed. She was then absent from December 2011 and did not return to work.

The school referred Ms O’Brien to occupational health, who initially stated that she might be able to return to work but, four months later, stated that she would not be able to return due to her stressed state. The school made subsequent attempts to obtain further medical information, including by trying to engage her trade union representative, but Ms O’Brien did not always cooperate.

In January 2013 a medical incapacity hearing was convened and Ms O’Brien was dismissed on the basis of the duration of her absence and the lack of any medical evidence suggesting that a return to work was likely.

Ms O’Brien appealed, and at the appeal hearing provided two new pieces of medical evidence (a fit note and a report from her therapist) that suggested she was fit to come back to work. However, the school did not attempt to seek another medical opinion of its own at that point, and the appeal panel upheld the dismissal, finding that the medical evidence was inconsistent and that a return to work was not certain.

Upon the case first being heard, the Employment Tribunal (ET) found that the school had a legitimate aim in that it wanted to provide a good standard of teaching and run efficiently, but that Ms O’Brien’s dismissal was not a proportionate means of achieving that aim. Crucially, it found that the school should have waited longer to determine whether Ms O’Brien would be able to return to work as suggested in the evidence she provided at her appeal.

Following an appeal by the school, the EAT disagreed, finding the dismissal fair and not discriminatory. Ms O’Brien then appealed that decision.

The CA restored the decision of the ET. For it, the primary issue was that Ms O’Brien had provided evidence on appeal that she was fit to come back to work. As such, the CA found that the school had acted unreasonably in disregarding that evidence without first seeking its own medical opinion on whether Ms O’Brien was as fit for work as she claimed.

The CA went on to say that, as the decision to dismiss Ms O’Brien was disproportionate under equality law, it also meant that her dismissal was unfair. This is an interesting point given that the tests for disability discrimination and unfair dismissal are not exactly the same.

The correct course of action in cases such as these will largely depend on the individual circumstances. However, as a general rule, a decision on an individual’s continued employment should not be made in the absence of a medical opinion, particularly where the employee has provided evidence of their own that they are fit to come back to work.

This case was described as ‘borderline’ given the duration of Ms O’Brien’s absence and the unsatisfactory nature of the medical evidence. On that basis, had the school gone one step further and attempted to query Ms O’Brien’s evidence, the decision may have been different.

If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

18th April 2017