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The case of O’Brien v Bolton St Catherine’s Academy deals with the fairness of long-term illness dismissals

It concerns a teacher who went off sick with depression. 11 months later the school arranged a sickness absence meeting but the employee refused to attend and in answer to written questions was unable to say when she could return.  2 months later there was a medical capacity meeting and the employee explained she was seeking treatment and hoped for a phased return but this could not be confirmed as yet.  The employer went on to dismiss Mrs O’Brien.

Under the Employment Rights Act 1996, section 98(4) capability is a potentially fair for dismissal.  On the face of it, section 15 of the Equality Act 2010 provides for a slightly different test. There, if an employee is treated unfavourably because of a disability, there is a defence being that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

The Employment Tribunal found the dismissal disproportionate because the school had not shown enough evidence on the adverse impact on Mrs O’Brien’s continuing absence on the school functioning.  In the absence of this evidence the Tribunal concluded that the school should wait a little longer to see if the employee could return to work, especially in light of the new evidence that she may be able to have a phased return.  The Employment Appeal Tribunal allowed the school’s appeal which was then reversed by the Court of Appeal.

The decision though provided some useful lessons as follows:

* whether additional knowledge and medical evidence can be gained from waiting a little longer

* what clarity there is on prognosis

* whether medical evidence backs up an employee’s statement he will soon be back at work

* what the history of progress indicates about the likelihood of return

* the impact of the employee’s absence on the employer and the continued impact of continued absence