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  • Stress and Long-Term Sick Leave

    25th April 2017

    A recently heard case (O'Brien v Bolton St Catherine's Academy) is a reminder to employers that the greatest care is called for when dealing with employees on long-term sick leave.

    The Court of Appeal found that the decision of a school to dismiss a senior teacher on medical grounds, after she was absent suffering from stress for a long period following an assault by a pupil, constituted unfair dismissal and disability discrimination.

    Ms O'Brien was a long-serving teacher at Bolton St Catherine's Academy, having commenced employment with the school in 2000, prior to its achieving academy status. She was a well-regarded member of staff with a clean disciplinary record and no history of unacceptable sickness absence.

    In March 2011, she had suffered physical injuries and acute stress as a result of the assault. She had returned to work for a short period, but suffered a relapse after seeing the pupil again.

    A further attempt to get back to the classroom also failed and, by that time, her condition amounted to a disability within the meaning of the Equality Act 2010.

    She had been on sick leave for 12 months when, frustrated at the level of non-cooperation on the part of Ms O'Brien and her GP, the school activated its sickness management policy and convened a meeting before a panel of governors.

    Although Ms O'Brien was undergoing therapy, there was no firm medical evidence as to when, if ever, she would be fit to return to work and the decision was taken to dismiss her on grounds of medical incapacity.

    At an appeal hearing, she presented a fit note from her GP, dated the previous day, stating that she was now able to return to work. She claimed to have recently completed a course of therapeutic treatment that she felt would enable her to cope with any future incidents.

    However, the panel was not satisfied that the fresh evidence really established that she was fit to return to work and the decision to dismiss her was unchanged.

    In upholding Ms O'Brien's disability discrimination and unfair dismissal claims, the Employment Tribunal (ET) found that the school had failed to show that her dismissal was a proportionate means of saving costs and fostering the efficient running of the school.

    There was no evidence before the governors that her absence was having an adverse impact on the school's business. A less discriminatory response would have been to wait a little longer to seek clarification of her medical condition, especially given the fresh evidence before the appeal panel. On the basis that her dismissal was disproportionate, it was also unfair.

    The school challenged the ET's decision and won. The Employment Appeal Tribunal noted that it was obvious that the long-term absence of a senior teacher with a leadership role was bound to have an adverse impact on the school, including the additional expense of arranging cover for her duties.

    The appeal panel had been sympathetic towards her and was justified in concluding that enough was enough. Ms O'Brien appealed.

    The Court of Appeal described the case as 'borderline', but ruled, by a majority, that the ET had made no error of law. In the circumstances, it was entitled to conclude that Ms O'Brien's dismissal was premature.

    There was evidence that she might well be capable of returning to work in the near future and, if the school had managed to cope with the difficulties posed by her absence to date, it might be expected to 'cope a little longer'.

    The Court rejected a claim that the ET had 'erroneously conflated' the tests for unfair dismissal and discrimination arising in consequence of disability.

    In cases of this type, the finding that a dismissal that was disproportionate for the purposes of discrimination law was unreasonable for the purposes of an unfair dismissal claim was entirely legitimate.

    The amount of Ms O'Brien's compensation remains to be assessed and the Court expressed the hope that a settlement could be reached without the need for further proceedings.

    Employers who find themselves in this situation are advised to keep a full record of the impact of the employee's continued absence for use as evidence in support of any future decision to end the employment relationship.

    For information and advice on all your Employment needs contact Rachel Fereday or Maxine Nutting in Devizes on 01380 722311.

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