A recent Court of Appeal case considered a difficult issue for employers relating to unfair dismissal following long term absence.
The case involved a lady (Ms O'Brien) who was the Director of Learning at an academy. It involves an all too regrettable and frequent occurrence whereby she was assaulted by a pupil. Not surprisingly Ms O'Brien was deeply affected by the incident. She had time off work due to stress and sometime after she was diagnosed with anxiety, depression and post-traumatic stress disorder as a result of which she was away from work for more than a year. The academy dismissed Ms O'Brien for medical incapacity.
Ms O'Brien brought a claim to the Employment Tribunal based on discrimination arising from disability and unfair dismissal. Her case was successful but was overturned by the Employment Appeal Tribunal. The latter felt that the academy did not need to wait any longer for her to return to work. Ms O'Brien took her case to the Court of Appeal.
The basis of her claim was that her employer had not dealt with the situation properly following the assault upon her and in particular the academy had not reinstated a policy to exclude pupils who had assaulted teachers.
During the year of Ms O'Brien's sick leave there were a number of meetings and exchanges regarding her continuing medical condition. She was undergoing various therapies and found it difficult to contribute to meetings with her employer. The academy had a formal medical incapacity meeting and decided to dismiss Ms O'Brien as a result of the length of time that she had taken from work on the basis that there had been no progress in her condition and they had no prognosis or indication of when she would be able to return.
The Court of Appeal found in Ms O'Brien's favour although only just. They reinstated the original Employment Tribunal judgment confirming that she had been unfairly dismissed.
Part of the reason that the Court of Appeal found against the academy was due to its actions after Ms O'Brien was assaulted. Yet again this is an important reminder to employers that their policies and procedures in such cases must be robust and closely followed.
To justify a dismissal the employer must consider the impact on its business.
Whilst it is accepted that employers cannot be expected to allow long term sickness to continue indefinitely, it is important for there to be evidence to prove that the employer has considered the impact on the business to prove that the dismissal was fair.
Another interesting aspect of the case is that medical incapacity was capable of constituting discrimination arising from disability.
If you would like to discuss this or any other employment related matter contact us.