The Court of Appeal has held that, in a case of long term sickness absence, the employer should not have disregarded evidence produced at an internal appeal that the employee was fit to return to work without at least a further assessment by its own occupational health advisers. The employer should also have presented evidence on the impact the long term sickness absence had had on it.

long term sickness

The employee, in this case, was a teacher an head of her department. After being assaulted by one of the pupils at the school she had a short period off work. She was very shaken by the incident, felt unsafe in parts of the school and her duties were restricted accordingly.

After some further incidents she went off sick. The initial diagnosis was stress at work. There were subsequently other diagnoses, including anxiety, depression and post-traumatic stress disorder.

Eventually, after she had been off work for over a year, the school sought clarification as to when she might be able to return to work and what adjustments it could make to facilitate her return. However, the school had difficulty getting this information. The employee refused to attend a meeting to discuss her prognosis because she felt the meeting might upset her. She was asked to provide the information in writing, which she did in a questionnaire. However, the employee replied to key questions about timescales and barriers to a return to work by referring the school back to her GP, who did not feel confident about when she might be able to return to work.

She was subsequently dismissed for medical incapacity. At this point there was nothing to indicate to the employer that a return to work was likely in the near term. At an internal appeal the employee, however, presented a fit note from her GP which indicated that her return to work was imminent.

The employer believed that the medical information was inconsistent, and was suspicious of the sudden appearance of a more positive diagnosis in a fit note and dismissed the internal appeal.

The employee then brought a number of claims including claims for unfair dismissal and disability discrimination, which she won. The Employment Appeal Tribunal, however, allowed an appeal by the school.

The employee then appealed to the Court of Appeal. Allowing the appeal, the Court of Appeal said the case could fairly be regarded as near the borderline because of the length of the employee’s absence and the unsatisfactory nature of the evidence about when she might be fit to return. But the essential point, it said, is that by the time of the internal appeal hearing there was some evidence, albeit not wholly satisfactory, that she was now fit to return. For this reason it was open to the Tribunal to hold that it was disproportionate/unreasonable for the school to disregard that evidence without at least a further assessment by its own occupational health advisers.

Impact of long term sickness absence

The Court also said that the severity of the impact on the employer of the continuing absence of an employee who is on long-term sickness absence must be a significant element in the balance that determines the point at which their dismissal becomes justified, and it is not unreasonable for a tribunal to expect some evidence on that subject. What kind of evidence is appropriate, the Court said, will depend on the case. Where it is obvious that the impact is very severe a general statement to that effect will suffice. However, where it is less evident, the employer will need to give more particularised evidence of the kinds of difficulty that the absence is causing. In this case no evidence had been provided to the tribunal on the impact on the employer.

Case reference: O’Brien v Bolton St Catherine’s Academy