The facts
Ms O'Brien was employed by a school as a teacher and head of department. In 2011, she was assaulted by a pupil. She returned to school after a short period off work, but was shaken by the incident, and after some further incidents, went on long term sick leave. She was diagnosed with stress at work and subsequently with anxiety, depression, and post traumatic stress disorder.
OH reports in the nine months after Ms O'Brien went on sick leave were not positive about the prospects of her returning to work, and described her case as "difficult". Nine months into her sick leave, she was invited to a meeting to discuss her absence. She did not attend the meeting, saying that she would be too upset and that she felt she had nothing more to say. At the suggestion of her trade union representative, the school asked her several questions in writing and (after she had been chased for a response) she replied three weeks later. Her response gave very little information, but she suggested that the school contact her GP. The school did so, and several weeks later, the GP responded to the effect that he could not answer the questions, and that the school should speak to Mrs O'Brien.
Frustrated by this response, the school progressed to a formal incapacity hearing, at which Ms O'Brien and her trade union representative both addressed a panel. Ms O'Brien told the panel that she had been referred to a therapist, who had decided to treat her for post-traumatic stress disorder, the treatment of which would involve seven sessions. Ms O'Brien said that she hoped to return to work by the end of April, when she would have concluded her treatment. The therapist, however, had not felt able to confirm that she would be able to return to work and would not feel able to express a view until the conclusion of the treatment. Ms O'Brien could not say what her reaction would be if, following a return to work, there were a similar incident with a pupil. The school did not put forward any information about the effect of her absence on the school.
The panel decided that Ms O'Brien should be dismissed. The factors leading to this decision were:
- The length of time off work with no substantive progress in the condition;
- No prognosis that indicated a return to work likely in the near future;
- Concern that the incidents that precipitated her condition would occur again in the school environment.
Ms O'Brien appealed and her appeal was heard by a different panel. She presented a Statement of Fitness For Work which stated that she was fit for work, though gave no further information. She also presented a letter from a psychologist recommending treatment, and saying that Ms O'Brien could be expected to return to her "pre-trauma functioning" within 10-12 sessions of this treatment. The report pre-dated any treatment, but Ms O'Brien told the panel that she had now undergone the treatment and was fit to work full time.
The appeal panel was not satisfied that the new evidence established that Ms O'Brien was fit to work and the appeal was not upheld. Again, the school did not provide information to the panel about the effect that her absence had on the school, and about the burden, disruption or extra support arising from her absence.
Ms O'Brien's claims of unfair dismissal and that her dismissal was unfavourable treatment arising from a disability were successful in the employment tribunal. The EAT upheld the school's appeal against this decision, and Ms O'Brien appealed to the Court of Appeal.
The Court of Appeal (acknowledging that this was a borderline case) agreed with the employment tribunal that the dismissal was unfair and discriminatory.
- The school had not provided adequate evidence to the panel about the adverse impact of Ms O'Brien's absence, including the disruption caused, the nature of the support provided by colleagues, the cost of covering her teaching duties, and the effect of her absence on the running of the school and/or the standard of education provided to students.
- The Court of Appeal acknowledged that the argument "give me a little more time and I am sure I will recover" is an easy one for employees to advance, and a time comes when an employer is entitled to some finality. This was all the more the case given Ms O'Brien's lack of co-operation, and the unsatisfactory nature of the evidence at the appeal hearing which was only produced that day. However, in this case, "waiting a little longer" would not have involved waiting for Ms O'Brien to get better, but waiting a little longer so that the school could obtain its own evidence, based on a further OH report. It was open to the tribunal therefore to have found that the school should have held off on the dismissal while it obtained an OH report.
The Court of Appeal rejected a submission that the employment tribunal had wrongly conflated the tests for unfair dismissal and justification of discrimination arising from a disability. The application of the two tests will rarely lead to different results in the context of long term sickness, and a tribunal's failure to consider them separately will not be an error of law.
What does this mean for employers?
This case shows some of the complexities of ill health dismissals, and was a harsh decision for this employer. The employee had been absent for nearly a year, she had not co-operated in the process, the evidence available when she was dismissed would almost certainly have justified her dismissal, and the evidence presented at the internal appeal was inconclusive.
Some useful reminders for employers dismissing for ill-health arise out of the case:
- When deciding whether to dismiss, employers must consider the adverse impact on the employer of the absence, including cost, business disruption, impact on other staff, and the employer's ability to provide services to its customers/clients/service users.
- If an employee says at a late stage in the dismissal process that they are fit for work, evidence about why the employer cannot wait, because of the need for a phased return or the likelihood of reoccurrence of sickness, for example, should be set out in any dismissal letter.
- Employers do not have to wait indefinitely to see if the employee's diagnosis improves: in rare cases, an employer may be able to dismiss fairly where the return might be imminent. However, employers should hold off on a decision if, by waiting a little longer, they can get better evidence (such as from OH) on which to base the decision.
- Employers should take into account new evidence which is put forward at an internal appeal.
