Case update: dealing with long-term sickness absences

Are you struggling with long-term absence? Such absences can have significant impact on businesses. This case helps to clarify best practice, and suggests that it is not unreasonable for an employer to conclude that an employee who is continually absent on long-term sick leave should be dismissed.

A brief background

Ms O’Brien was attacked by a pupil at school. She did not suffer serious injuries, and returned to work shortly afterward. Subsequently, she was absent on sick leave citing stress (and then anxiety and depression) believing the school’s approach to dealing with aggressive pupils to be unsatisfactory, and feeling unsafe in parts of the school following the attack.

After almost a year of absence, the school wanted to clarify when Ms O’Brien might return to work, and what adjustments could be made to help the situation. Ms O’Brien refused to attend a meeting to discuss her prognosis, and when requested to fill in a written questionnaire, she asked her GP (who did not feel confident about an imminent return to work) to answer certain questions.

Following a formal medical incapacity hearing under the school’s absence management procedures, Ms O’Brien was dismissed, as at the hearing there was no indication that a return to work was ‘likely in the near term’.

Ms O’Brien appealed the dismissal, and at the appeal hearing she brought a fit note from her GP as additional evidence which stated that her return to work was imminent. The school refused her appeal, and upheld her dismissal on the basis that the medical opinion was inconsistent.

Ms O’Brien brought claims of unfair dismissal and discrimination arising from disability at the Employment Tribunal, who found in her favour. The school subsequently appealed, and the decision was overturned at the Employment Appeal Tribunal.

The matter then went to the Court of Appeal (CoA), which restored the original decision in favour of Ms O’Brien, and provided useful guidance to employers who face dealing with employees on long-term sick leave.

Guidance for employers on long-term sick leave

  • The CoA recognised that employers are not expected to wait forever for an employee to recover from illness, and that employers are entitled to some finality (particularly when an employee has been absent for over 12 months and there is no timescale for their return).
  • It is important for an employer to demonstrate the impact the continued absence is having on the business or establishment, which the school did not do. Employment Tribunals are likely to require sufficient evidence of the effect an individual’s long-term absence is having. Therefore, a starting point for employers is keeping a record of the issues caused (such as other employees having to cover work, additional strain on teams).
  • Where additional evidence is provided at an appeal hearing (or at any other stage during the absence management process) this should be considered with all other previous evidence. The ultimate decision to dismiss must be fair based on all the available evidence at the time.

This case was described as being ‘near the borderline’ due to the following:

  • the length of absence
  • the nature of the evidence available
  • Ms O’Brien’s likely return.

For employers, the CoA guidance is useful. It recognises the impact long-term absences can have on businesses, and the type of situation which may lead an employer to dismiss an employee who is continually absent on long-term sick leave.

Read the details about O’Brien v Bolton St. Catherine’s Academy

If you would like to discuss any of the points raised here, please contact Justine, the head of our employment team.