Long-term sickness absence – a warning to employers

Many employers will have experienced difficulties arising from long-term sickness absence.

The Court of Appeal’s recent decision in O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145 provides some useful guidance for employers when dealing with long-term sickness absence dismissals.

In this case, Ms O’Brien had been absent from work due to ill health for more than 12 months prior to her dismissal.

No Clear Evidence

At the time of the dismissal, there was no clear medical evidence of Ms O’Brien’s prognosis or any indication of when she might be able to return to work.

Ms O’Brien appealed against the decision to dismiss her, by which time her GP had declared her fit for work and she had indicated that she would be able to return to work on a specified date.

Ms O’Brien’s appeal was dismissed, following which she brought claims against her employer for disability discrimination and unfair dismissal in the Employment Tribunal where it was subsequently held that she had been unfairly dismissed and that her employer had breached Section 15 of the Equality Act 2010.

The Employment Tribunal’s Decision

The decision of the Employment Tribunal was overturned by the Employment Appeal Tribunal before the matter was then considered by the Court of Appeal which reinstated the findings of the Employment Tribunal.

The decision of the Court of Appeal suggests that employers should be especially cautious where there is a change in circumstance between the dismissal and appeal which ought to be properly taken into account when addressing an employee’s appeal.

Further, if an employee subsequently produces evidence of fitness to work pursuant to an appeal against dismissal such evidence ought to be properly considered by the employer.

Significantly, if an employer seeks to argue that the long-term absence is causing considerable difficulties within the organisation, properly particularised evidence ought to be produced in support of any such contention.

For further advice on managing sickness absence contact us. DPH Legal specialises solely in employment law issues such as disputes, grievances, settlement agreements, compromise agreements and redundancy.

Disclaimer: The contents of this article are for information purposes only and should not be relied upon as formal legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Specific legal advice should be sort tailored to the individual circumstances in all cases.


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