Employment Law Case Update: O'Brien v Bolton St Catherine's Academy

In the case of O’Brien v Bolton St Catherine’s Academy, Ms O’Brien was head of a department at the school.  She was attacked by a pupil and although her injuries were not serious, on her return to work she felt unsafe and dissatisfied with the school’s lax approach to dealing with aggressive pupils. Consequently, she later went off work with stress. 

After a year off work, the school wanted clarification from Ms O’Brien as to when she might return to work and how they can make adjustments to assist her return.  The school struggled in obtaining this information and Ms O’Brien refused to attend a meeting.  She was therefore asked to complete a questionnaire, in which she responded to key questions regarding timescales and barriers to a return to work by referring the school to her GP.  The GP was not able to say when Ms O’Brien might be able to return to work.

Ms O’Brien was dismissed by the school following a formal medical incapacity hearing.  At this point there was no indication that a return by Mrs O’Brien was likely in the term.  An internal appeal by Ms O’Brien resulted in the dismissal being upheld.  At the appeal Ms O’Brien presented a Fit Note from her GP to say her return to work was imminent.

At the employment tribunal Ms O’Brien was successful in her claim for discrimination arising from disability and unfair dismissal.  The decision was then overturned at the EAT which held that the ET had gone too far in expecting the employer to cope with Ms O’Brien’s absence any longer.

The Court of Appeal then restored the decision of the ET and gave guidance to employers regarding long term sick leave dismissal.  The guidance can be summarised as follows:-

• It may not necessarily be unfair for an employer to decide to dismiss an employee when they have been absent for longer than 12 months and there is no certainty as to when they might return.
• The severity of the impact on the employer of the absence must be a significant element for dismissal to be justified.  A tribunal will expect some disruption to the business.
• A decision to dismiss must be fair on the basis of the information available to the employee at the time of the appeal.

It would therefore be advisable that employers keep a written record of the issues caused by the absence of an employee and to review the medical evidence being produced by the employee on a regular basis. While an employer is not expected to wait forever for an employee to return to work, it is important to consider all the circumstances and what effect their absence is having on the business. 

ENDS

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