One of the trickier HR matters for employers to manage is long-term sickness absence. Many employers are nervous about dealing with employees on long-term sickness absence, either because they are mindful that the employee’s condition may amount to a disability and that the employer may find itself facing a discrimination claim if it takes certain action, or the employer simply does not wish to cause further stress or upset to an individual already dealing with a long-term illness. However, it is important for employers to actively manage the situation and to be in a position to know if / when the employee in question is likely to return to work. In some cases, the employer may find itself in a position where it considers that it is simply unable to keep the employee’s position open any longer, particularly where there is uncertainty as to when the employee may return, and considering dismissal of the employee on the ground of capability. In the recent case of O’Brien v Bolton St Catherine’s Academy, the Court of Appeal provided guidance which is useful for employers who are considering dismissing an employee on the grounds of long term-ill health. In this case, Ms O’Brien, a teacher at Bolton St Catherine’s Academy at the relevant time, had been on long-term sick leave for over 12 months when she was dismissed on the ground of incapacity. The Academy held an initial meeting with Ms O’Brien whilst she was off sick and it was agreed that Ms O’Brien would attend an occupational health appointment. However, the occupational health reports produced did not aid the Academy in identifying adjustments which would facilitate Ms O’Brien’s return to work, nor was it clear when Ms O’Brien might be fit to return. It is understood that there were other difficulties for the Academy in obtaining information from Ms O’Brien and her GP regarding a return to work. The Academy instigated a formal medical incapacity hearing. The Employment Tribunal noted that the Academy did not present any evidence about the detrimental effect of Ms O’Brien’s absence on the Academy. Ms O’Brien told the Academy that she was undergoing treatment for PTSD and that she hoped to be able to return to work but would not know if that would be possible until after the end of her treatment. The Academy dismissed Ms O’Brien on the basis that Ms O’Brien had already been absent for a significant length of time and that it was unclear whether Ms O’Brien would be able to return in the near future. The Employment Tribunal found that the dismissal was unfair and discriminatory. The Academy successfully appealed to the Employment Appeals Tribunal (EAT), but the EAT’s decision was overturned on appeal by Ms O’Brien to the Court of Appeal. The Court of Appeal agreed with the Employment Tribunal that employers considering dismissing an employee on long-term sickness absence must produce evidence to show the detrimental effect of the employee’s absence on the business. In cases where the employee’s absence is having a very clear detrimental effect on the functioning of the business, a simple statement may suffice. However, in other cases, it is important for the business to be able to point to specific difficulties which it is facing as a result of the employee’s continued absence such as the cost and disruption of hiring a temporary replacement, a shortage of other staff to take on the employee’s duties or difficulties servicing particular clients or customers. It was also noted that employers should not have to wait indefinitely to see whether an employee will ultimately be fit to return to work and a time comes when an employer is “entitled to some finality”. That being said, in cases such as this one where the employee had already been absent for a significant period of time, it will be important for employers to be able to show why it was proportionate and reasonable to dismiss the employee, rather than waiting a little longer to see if the situation improved. In summary, in cases of long-term sickness absence it is important for employers to continue to monitor the situation, both in terms of seeking updates on the employee’s health but also by monitoring the effect of the employee’s continued absence on the business. This case demonstrates that employers wishing to dismiss an employee on capability grounds will need to show, amongst other matters, that they have fully considered whether the detrimental effect of the employee’s absence could be alleviated (for example, by re-distributing the employee’s duties) and employers will also need to be able to justify why the decision to dismiss was ultimately triggered. Disclaimer: This bulletin is for general guidance purposes only and should not be used for any other purpose. This article is written by Brabners and reproduced with their permission. Brabners is a Limited Liability Partnership.
