A recent Court of Appeal case has provided guidance for employers when looking to fairly dismiss an employee who has been absent on long term sick.
In the case, the employee was assaulted by a pupil at school and had a short period off work. On her return she felt unsafe and unsupported by the school. She went off sick in December 2011 with a diagnosis of stress at work. She was twice referred to occupational health which noted she was unfit for work and significant work was needed to resolve her condition. A meeting was arranged by the employer to discuss her absence but she did not wish to attend and advised them to contact her doctor. The employer contacted her GP and received a reply that they should speak to the employee herself.
A formal medical incapacity process started and a hearing took place in January 2013. The employee was dismissed as it was unlikely she would return to work in the future. An appeal hearing was held and the employee had two pieces of evidence stating she was now fit to return full time. The appeal board dismissed the appeal and the employee made a number of claims including discrimination arising from a disability.
The employment tribunal (ET) decided the employee suffered discrimination and the dismissal was disproportionate because there was no evidence her absence was causing an adverse impact on the running of the school. Without this evidence, it was reasonable to “wait a little longer” to see if she could return to work; they did not see why a 17 month absence was wholly unacceptable to the employer when compared with a 20 or 21 month absence. The ET commented that if the appeal board doubted the employee’s evidence of fitness to work it was proportionate to wait a little longer to get another occupational health report before making a decision.
The case went to the Employment Appeal Tribunal where the ET decision was overturned, however, it was appealed again to the Court of Appeal (CA). The CA agreed with the ET and found it was not justifiable for the appeal panel to ignore the new evidence of fitness to work as it was set up to review the first decision. They commented that in some cases it will be obvious that the employee’s absence is having a severe impact but, in others, it will be less evident and the employer will have to produce evidence.
