The delicate balance – ill health dismissals
Deciding when is appropriate to terminate the employment of an employee who has been long term absent due to ill health is a difficult decision. The Court of Appeal’s decision in O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145 provides some useful guidance on this issue.
As with all decisions dealing with ill-health dismissals, the specific facts of the case were relevant and interesting. Ms O’Brien was a well-regarded, long serving teacher at St Catherine’s Academy. The Academy had in the past been subject to special measures and it was recognised that many pupils displayed aggressive and challenging behaviour. In March 2011, Ms O’Brien was assaulted by a pupil and as a result suffered injury and an acute stress reaction. Ms O’Brien returned to work for a short period but suffered a relapse after seeing the pupil on the premises. She returned to work for a further period but in December 2011 the stress reaction again manifested and she ceased work and never returned. From this time she was disabled within the meaning of the Equality Act 2010.
Medical reports made available to the Academy did not give any clear prognosis as to when Ms O’Brien might be able to return to work. Ms O’Brien was also un-cooperative in providing information to the Academy that would enable it to consider whether a return to work was likely.
In January 2013 the Academy called a medical incapacity hearing. At the hearing there was no clear evidence as to when Ms O’Brien might return to work although she was hopeful of being able to return by the end of April 2013. In the circumstances, the panel determined to terminate Ms O’Brien’s employment. Ms O’Brien exercised her right of appeal, which was heard by way of review and dismissed.
Ms O’Brien brought a claim in the employment tribunal claiming, amongst other things, unfair dismissal within the terms of section 98 of the Employment Rights Act 1996 (ERA) and discrimination arising from a disability by reason of her dismissal contrary to section 15 of the Equality Act 2010 (EqA 2010).
At first instance the employment tribunal held, amongst other things, that the dismissal was unfair and that it amounted to discrimination arising from a disability. The Academy appealed against this decision. The Employment Appeal Tribunal allowed the appeal, remitting the case to a freshly constituted employment tribunal. Ms O’Brien then appealed to the Court of Appeal. The decision of the Court of Appeal was to reinstate the original decision.
The judgements explore the relevant statutory tests and the distinctions between section 98 ERA and section 15 EqA 2010. We are reminded that, when considering the fairness of the decision to dismiss within section 98 ERA, the tribunal must not substitute its views for those of the employer. Rather, the tribunal should consider whether any reasonable employer in the circumstances would have dismissed. In relation to discrimination arising from a disability claim, under section 15 EqA 2010, the question is different. Here the tribunal must consider whether the act of dismissal, being potentially discriminatory, could be justified as a proportionate means of achieving a legitimate aim.
At first instance, the Academy was heavily criticised for failing to evidence an explicit consideration of the impact Ms O’Brien’s absence had had on the school. Having concluded that Ms O’Brien’s dismissal constituted unfavourable treatment in consequence of her disability, the tribunal determined that it was for the Academy to show that the treatment was a proportionate means of achieving a legitimate aim. It considered potential legitimate aims to include reducing the expense, disruption or additional burden placed on colleagues as a result of the absence. The tribunal concluded that, in failing to evidence the adverse impact Ms O’Brien’s continued absence was having on the school, the Academy failed to show that the decision to dismiss was a proportionate means of achieving a legitimate aim. In such circumstances the tribunal considered it reasonable to expect the Academy to wait a little longer to see if Ms O’Brien would be able to return to work. This decision was also influenced by some encouraging, albeit inconclusive, medical evidence presented at the appeal hearing. This further evidence at the appeal hearing also heavily influenced the Court of Appeal’s decision.
In reaching its decision the Court of Appeal referred to the fact that, by the time of the appeal, the Academy had endured Ms O’Brien’s absence for 14 months and it was open to the tribunal to find that it was unreasonable of the employer not to wait a few months longer. This would have allowed the Academy time to obtain further medical evidence.
In relation to the question of how long an employer can be expected to wait and how much evidence of disruption there needs to be Underhill LJ made the following observations:
“The argument “give me a little more time and I am sure I will recover” is easy to advance, but a time comes when an employer is entitled to some finality. That is all the more so where the employee had not been as co-operative as the employer had been entitled to expect about providing an upto-date prognosis.” (paragraph 36).
“In principle the severity of the impact on the employer of the continuing absence of an employee who is on longterm 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 will depend on the case. Often, no doubt, it will be so obvious that the impact is very severe that a general statement to that effect will suffice; but sometimes it will be less evident, and the employer will need to give more particularised evidence of the kinds of difficulty that the absence is causing.” (para 45).
These comments, combined with the many changes in direction during the course of the multiple hearings, evidence the difficulties employers face when considering ill-health dismissals. Whilst the Court of Appeal decided to uphold the original decision, in Ms O’Brien’s favour, the comments demonstrate a clear sympathy towards the Academy. Often, as in this case, it is a fine balance and what is reasonable depends heavily on the specific facts.
Best practice to minimise the risk of challenge
- Follow a fair procedure.
- Glean as much information as possible regarding the underlying health condition and prognosis. This includes ascertaining the upto-date medical position and consulting with the employee about this.
- Consider if the employee is disabled. If the employee is suffering from a disability, the employer is under a duty to make reasonable adjustments and must not discriminate.
- When considering dismissal, evidence the decision making process. This should include a record of the reasons why the employer can/cannot wait any longer. Disruption to the organisation, a burden on other members of staff and cost are all potentially relevant.
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