The UK Court of Appeal has considered if an employer was discriminating against its employee who had been on long term sick leave for more than 12 months by terminating her employment.
The background
In the case O’Brien v. Bolton St Catherine’s Academy, a teacher employed by the Respondent school was assaulted by a pupil in March 2011. Consequently, the teacher suffered serious stress and was on sick leave for over a year.
The teacher attempted to return to work in December 2011, but she was unsuccessful. Following this she had not returned to work, and in January 2013 the school terminated her employment.
The teacher lodged an internal appeal, which was heard in April 2013. The teacher produced a ‘fit for work’ note, as well as additional medical evidence, at this hearing. However, the panel upheld the dismissal on the grounds that the medical evidence was inconsistent, the prognosis was not good, and her return was uncertain. As a result, the teacher claimed against the school for disability discrimination.
The outcome
The UK Court of Appeal considered it unreasonable that the school had disregard the teacher’s medical evidence at the internal appeal hearing. Because the school already had endured the teacher’s absence for 15 months, it was considered unreasonable for the school not to wait a few months longer, so that the school could obtain and assess its own medical evidence.
The court felt that the school should consider and provide evidence of the impact of the teacher’s prolonged absence (which it had not done to this point). Therefore, the court felt, the school’s dismissal of the teacher constituted disability discrimination. The court did acknowledge that this was a borderline ruling due to length of absence, and the nature of evidence of when the teacher would be fit to return to work.
What can we learn from this?
Although employers are not expected to wait forever for an employee to recover from illness, there are a number of steps they should take to prevent any action being considered as unfair.
- Written records of any disruption caused to the business of the employers arising from the employee’s absence should be documented.
- Employers should assess any medical evidence produced by the sick employee carefully, including any new evidence which may be available during the dismissal process (including any internal appeal hearing).
- Additionally, employers should consider the nature of the illness, the likely length of continuing absence, and the need of the employers to have done the work which the employee was engaged to do.
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