“Wait a little longer for me to recover”

We are often asked how long an employer should await before moving to dismiss a long term sick employee, particularly given the likely exposure to a claim for disability discrimination.
The recent case of O’Brien v Bolton St Catherine’s Academy highlights how tricky this can be. Ms O’Brien, a teacher at the academy, had been attacked by one of her pupils. Her injuries were not too serious and she was able to return to work after a short period. However, she felt unsafe at the school and consequently went off work with stress. She was away from work for more than a year, and the school sought clarification as to when she might return, which was referred to her GP.
The school subsequently dismissed her after a formal medical incapacity hearing where there was no indication at the time that Ms O’Brien would return to work any time soon. However, at her appeal, she produced a vague fit note from her GP stating that she was fit to work. The school’s head viewed that evidence as being inconsistent with her medical history and refused to accept it, and the dismissal was upheld.
Ms O’Brien won her employment tribunal claims for disability discrimination and unfair dismissal. The employers appealed and the case landed at the Court of Appeal. Although the Court of Appeal decided that this was a borderline decision, it ultimately did not interfere with the tribunal’s decision that the dismissal was unfair and discriminatory.
Whilst the case involved other technical arguments, essentially two important points can be taken out of this case for HR departments/employers to note:

  • the submission of fresh medical evidence on appeal, even it is woolly and presented late, should have triggered further medical investigation; the school should have looked at getting its own medical report.
  • The school had not presented any real evidence as to why it should not wait a little longer given how long it had wait already, coupled with what could be seen as more positive medical evidence regarding the Ms O’Brien’s recovery.