Contrasting the decision in Herry with an earlier decision in O’Brien v Bolton St Catherine’s Academy highlights the importance of properly investigating the reason behind an employee’s absence before considering dismissal.
Ms O’Brien was a Director of Learning ICT at Bolton St Catherine’s Academy. Following an assault on her by a pupil, she had a 13 month “stress-at-work” related absence. As a result of the attack, she was later diagnosed with anxiety, depression and post-traumatic stress disorder and her impairment would therefore be considered as a disability under the Equality Act 2010.
Following long-term absence, the academy dismissed Ms O’Brien for medical incapacity because there was no evidence that she would be able to return to work in the foreseeable future.
The Court of Appeal upheld an employment tribunal’s “borderline” decision of unfair dismissal (and disability discrimination under section 15 of the Equality Act 2010) which hinged on a finding that it had been unreasonable of the employer to disregard medical evidence at an internal appeal hearing that the employee was fit to return to work.
The Court also agreed with the tribunal that it would not be unreasonable for the school to wait a few months longer to obtain its own medical evidence before dismissing Ms O’Brien.
When long-term sickness absence can result in dismissal the dismissal must be justified. The kind of assessments and/or evidence which is required to show the reason for the dismissal will depend on the circumstances.
Often it is obvious that the impact of the absence within the workplace is very severe and a general statement to that effect will suffice. If however it is less evident, or a “borderline” case, an employer will need to give more particularised evidence of the kinds of difficulty that the absence is causing.
The Court, when making the decision, made it clear that employers are not expected to wait forever before dismissing an employee for medical incapability and dismissal is sometimes a valid step when return to work is not imminent.
However, if an employer does decide this is the most appropriate step, their actions must be justified and it is important to ensure that employers have evidence of this, and have evidence of considered alternatives, before dismissing an employee for this reason.
The case also serves as a reminder not to disregard new evidence if the new evidence comes to light later on in the dismissal process, for example, when considering an appeal. In the case of O’Brien the court agreed with the tribunal that it was unreasonable for the school to disregard up-to-date medical evidence at an internal appeal hearing that the employee was fit to return to work.
For more information on investigating absence please contact Noele by emailing nmcclelland@thorntons-law.co.uk or contact a member of our specialist Employment Law team team on 01382 229111.
