Sick employees are an expensive problem for employers. But how long do employers need to wait before deciding enough is enough and taking the drastic step of dismissing an employee for being incapable of doing their job? Is it fair and not discriminatory to sack an employee who has been off sick more than a year?
The recent Court of Appeal decision in O’Brien V Bolton St Catherine’s Academy gives us some useful guidance in answering this thorny question even if the case was described as being “near the borderline”.
Long term absence
Mrs O’Brien was a teacher at the academy who was assaulted by a pupil. She was left very shaken and felt unsafe in part of the school after the assault. This led to her being diagnosed with anxiety, depression and post-traumatic stress disorder.
After a year of sickness absence the Academy decided to dismiss Mrs O’Brien on the basis that there was no evidence that she would return to work in the not too distant future. The employer in other words decided it could not wait forever and considered this to be a reasonable and fair step to take.
Mrs O’Brien appealed against this decision. At the appeal hearing, she produced a fit note from her GP. The note confirmed her fitness to work and in the box requiring a statement about how long that would be the case, the GP had written “ongoing”. The appeal panel asked Mrs O’Brien if she really felt ready to return to work and she told them that healthwise that was the case. This did not make any difference and the dismissal was upheld.
Unfair dismissal and disability discrimination
The Court of Appeal found that the dismissal was both unfair and amounted to disability discrimination. It decided that the Academy ought not to have disregarded the fit note and should have waited longer before dismissing Mrs O’Brien. Also, the Academy appeared not to have considered in the round the impact of Mrs O’Brien’s continued absence on its business.
The Court of Appeal judges were not all in agreement about the decision and the fit note which was described as “half baked” by one of the judges together with the length of the absence fuelled this disagreement.
The case itself highlights the difficulties of this type of dismissal decision for employers now that the Court of Appeal has spoken. Dismissal should be seen as the last resort in cases such as this when all other alternatives have been exhausted. An employer who takes a decision to dismiss in the absence of sound occupational health advice does so at its peril.