Long-Term Absence Dismissal

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O’Brien v Bolton St Catherine’s Academy

Ms O’Brien was a teacher at the Academy. She took a short period of time off work after having been assaulted by a pupil. That incident and some other factors continued to affect her, culminating in absence for stress and diagnoses of anxiety, depression and post-traumatic stress disorder.

She was dismissed after being off work for more than a year. There had been no certainty about a likely return to work, and Ms O’Brien was found to have been uncooperative during the employer’s attempts to establish this. And although she produced evidence on the day of her internal appeal that she was fit to return, the employer viewed this with some scepticism. It was considered to be an attempt by Ms O’Brien to get back to work before her condition was fully treated.

The tribunal found that dismissal was excessive because:

(a) the Academy hadn’t adduced satisfactory evidence about the adverse impact which Ms O’Brien’s continuing absence was having on the running of the school; and
(b) in the absence of that evidence it was reasonable to wait ‘a little longer’ to see if she would be able to return to work, particularly in the light of the encouraging evidence available at the appeal hearing.

The majority of the Court of Appeal upheld that decision, but described this as a ‘borderline’ case. An employer will not be expected to hold on forever, the Court pointed out:

“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 up-to-date prognosis…and where the evidence relied on at the appeal hearing was only produced at the day of the hearing and was not entirely satisfactory.”

It is clear that employers will be expected to thoroughly consider and respond to all evidence that emerges during the absence management process, including at the appeal stage. This might mean commissioning fresh medical evidence, or at least getting occupational health input. Also, remember that good evidence of the adverse effect that a person’s absence is having on your organisation will be important in justifying a decision to dismiss.