1 November, 2017
In the case O’Brien v. Bolton St Catherine’s Academy, the UK Court of Appeal considered whether an employer was discriminating its employee who had been on long term sick leave for more than 12 months by terminating her employment.
Facts
The Claimant, a teacher (“Teacher”) employed by the Respondent school (“School”), suffered serious stress after being assaulted by a pupil in March 2011 and was on sick leave for over 12 months.
In December 2011, the Teacher unsuccessfully attempted to return to work. Since then, she had not returned to work. In January 2013, the School terminated her employment.
The Teacher lodged an internal appeal, which was heard in April 2013. At that hearing the Teacher produced a “fit for work” note and additional medical evidence. The panel upheld the dismissal as the medical evidence was inconsistent, the prognosis was not good, and her return was uncertain.
The Teacher claimed against the School for disability discrimination.
Decision of the UK Court of Appeal
The Court considered that it was unreasonable for the School to disregard medical evidence of the Teacher that she was fit to return to work at the internal appeal hearing.
Since the School had endured the Teacher’s absence for 15 months already, it was unreasonable of the School not to wait a few months longer so that the School could obtain and assess its own medical evidence.
The School should consider and provide evidence of the impact of the Teacher’s prolonged absence on its business.
The School failed to provide any evidence in this regard.
Therefore, 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.
Takeaway
While employers are not expected to wait forever for an employee to recover from illness, employers should put safeguarding methods in place, such as written records of any disruption caused to the business of the employers arising from the employee’s absence.
Employers should carefully review and assess the medical evidence produced by the sick employee, including any new evidence which may be available during the dismissal process (including any internal appeal hearing).
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.
For further information, please contact:
Elsie Chan, Deacons
elsie.chan@deacons.com.hk
