In our update seminar, we looked at the case of O’Brien v Bolton St Catherine’s Academy. This is a Court of Appeal case about long term sickness absence. Mrs’ O’Brien was Head of Department at the Academy; she was assaulted by a student and was off sick for over a year due to stress. The Academy asked her when she might be able to return to work and she said that she did not know, she asked them to ask her GP, which they did but the GP directed them back to her – not helpful. She was dismissed on the grounds of ill health capability because it was uncertain when she would be able to return to work.

She appealed and in the appeal process she produced a Fit Note from her GP saying that she was now fit to return to work and a letter from her consultant psychologist stating that she would make a full recovery following a course of treatment. Her appeal was rejected because the information given was contradictory. In my view, this decision was risky as the new information (even if it was contradictory) indicated that Mrs O’Brien would be well enough to return to work soon and no additional medical information (e.g. from an occupational health advisor) was obtained to shed more light on this.

The Court of Appeal found that the dismissal was unfair and discriminatory on the basis that the Academy could have waited a little bit longer to see if she was able to return to work. The Court of Appeal gave the following guidance:

Employers will need up to date medical evidence about fitness for work and there is danger in ignoring new information produced at the appeal stage. For example, in this case, if the new information was unclear then further investigation could have been made via the employer’s occupational health advisors.
Employers must produce evidence on the impact that the employee’s continued absence is having on the organisation – e.g. how is the work being covered, is there additional cost to the business, is there impact on other members of staff. The Court of Appeal said that it is a good idea to include this in the dismissal letter.
If medical information indicates that the employee may be able to return, then the employer may be expected to wait a little longer and will need to show why this was not possible – i.e. due to the impact on the organisation.
On sick pay – the ONS has found that the number of workers phoning it in is down to 4.3 days per worker per year, which is the lowest average since records began nearly 25 years ago.