Long Term Sick Leave: Hanging on vs Tapping Out!

The question, ‘how long is long enough when it comes to finally dismissing an employee on long term sick leave?’ is a struggle which many employers are faced with regularly. Waiting too long can have negative consequences on the place of work, whilst not allowing sufficient time for an employee to recover can result in unfair dismissals, discrimination and unwanted legal action. Neither of the above outcomes are desirable. A gray area has emerged and employers are finding it difficult knowing when to say enough is enough. The Court of Appeal in the recent case of O’Brien v Bolton St Catherine’s Academy brings some clarity with regards to these tricky cases.

What Happened to Mrs O’Brien?

The case in question concerns a school teacher, Mrs O’Brien, and events which took place in 2011. Whist working at the school Mrs O’Brien was assaulted by a pupil and was absent from her post for a short while. She returned to the school relatively quickly but then struggled day-to-day as she no longer felt safe in certain areas of the school and didn’t feel that the school had sufficiently dealt with the issue. As a result, Mrs O’Brien went on sick leave due to stress and was diagnosed initially with anxiety, and later with depression and post-traumatic stress disorder.

The Dismissal

Mrs O’Brien’s dismissal came in the January of 2013 after she had been absent from work for 12 months on the grounds of medical incapacity. At this time, there was no evidence of Mrs O’Brien’s imminent return to work. Ms O’Brien appealed the dismissal and gave evidence of her progress at the hearing. She showed that she was successfully moving forwards with her PTSD treatment and thought rshe would be fit and ready to return to work in April 2013. The Academy dismissed her because they felt there was no clear evidence that she would return to work.

Mrs O’Brien appealed against her dismissal. The internal dismissal appeal hearing was held on the 10th of April where Ms O’Brien produced a fit note from her Doctor stating that she was now well enough to return to work. In spite of this, the appeal failed and Ms O’Brien’s dismissal was upheld.

The Courts’ Responses

Mrs O’Brien then brought her case to the Employment Tribunal. She claimed disability discrimination and unfair dismissal. Her claim was successful in the first instance. The Tribunal found that the school didn’t sufficiently show how the employee’s absence had affected the school nor did they sufficiently consider the consequences of dismissing Mrs O’Brien against incurring further cost, disruption and the reliance on other staff members for more support. This decision was overturned by the Employment Appeal Tribunal which found that the School had waited long enough for Mrs O’Brien to return. Mrs O’Brien took matters to the Court of Appeal.

The Court of Appeal found in Ms O’Brien’s favour. It was found that the Academy should have ‘waited a little longer’ due to the evidence provided by Mrs O’Brien (ie the Doctor’s fit note) at the appeal hearing. It was also noted by the court that this case was by no means clear-cut and, as the period of absence was significant, it fell on the ‘borderline’.

For Employers

If you are an employer seeking further clarification regarding the gray areas, here are some key points to take from the above case.

  • If a member of staff has been on sick leave for an extended period of time it is advisable to put measures in place and to collect evidence which demonstrates how the employee’s absence is affecting the business.
  • Employers are advised to look at the employee in question’s medical history, current position and any improvements being made before making any decisions. Any new information must be considered when it is provided.
  • Employers are by no means expected to wait forever, and in cases where the period of time is significantly prolonged and there is no end in sight of the illness, dismissal may be a necessary step.
  • The Court did remind employers that the new information provided at the appeal did have a bearing on the decision. The appeal hearing should not have confined itself to deciding if dismissal at the original hearing was fair.

Cases of this nature are very specific in nature and the outcomes depend heavily on the individual facts involved. If you are an employer in search of further information and/or advice regarding a specific scenario, please don’t hesitate to contact us to speak to a member of our specialised team.