Employers considering dismissal on the grounds of long terms sickness absence need to tread carefully in light of a recent Court of Appeal ruling on a “borderline case”.

Breda Cullen of HR Team said it is vital employers keep medical evidence under review in long terms of absence and clearly communicate and document a “fair and reasonable process.”

She made the comments following a UK case involving school teacher Georgina O’Brien and Bolton St Catherine’s Academy.

 That case centred on the dismissal of Ms O’Brien, the head of a school department who was attacked by a pupil.

Despite returning to work initially after a short absence, she later went off work with stress related illness.

She was dismissed after an absence of more than a year with the school claiming a lack of clarity as to when she would be fit to return to work.

Her dismissal followed a formal medical incapacity hearing under the school’s sickness absence management procedures.

An internal appeal upheld the decision despite Ms O’Brien presenting documentation from her GP that her return to work was imminent.

Subsequently the teacher was successful at an employment tribunal claiming for discrimination arising from disability under the Equality Act and unfair dismissal.

However, that decision was overturned by the Employment Appeal Tribunal.

That decision has now been reversed by the Court of Appeal with Lord Justice Underhill describing the case as “near the borderline”.

According to the appeal court, once the school had received the new fit note from her GP, it had been wrong to dismiss Ms O’Brien without at least a further assessment by its own occupational health advisers.

HR Team’s Breda Cullen said employers need to take control of long term absence cases early on.

And she said employers should have protection measures already in place.

“Managing long term absence can seem complex and complicated but this need not be the case.

“This case shows how imperative it is that employers follow their absence management processes, clearly communicate and carry out regular absence review meetings with the employee, and obtain and regularly review professional medical opinion.

“A fair and reasonable process – involving the employee and their GP (or an Independent specialist appointed by the company) – will allow you to reach an informed decision, ie facilitating a return to work or dismissal on the grounds of incapability to perform duties. Clear documentation of each step to the process will demonstrate fairness.”

The Court of Appeal has further provided guidance for employers that are considering a long-term sick leave dismissal case.

Following the O’Brien v Bolton St Catherine’s Academy ruling, Lord Justice Underhill reinforced the following guidance for employers.

  • Where an employee produces updated medical evidence at the appeal hearing, the decision to dismiss must be fair on the basis of the information available to the employee at the time of the appeal

  • The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified.

  • It is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty as to when the employee will be able to return.

These points are worth noting even though the Court of Appeal decided against the school in this case, which now returns to the employment tribunal to consider O’Brien’s compensation.

For further advice on policies that will work for your workplace, contact HR Team.