A recent decision by the Court of Appeal is a useful reminder of the issues that employers must address when deciding whether to dismiss an employee for long term sick absence.

Employment Tribunals have often stressed that each case depends on its particular circumstances and the question if whether the employer can always be expected to wait any longer for the employee to return to work.

The recent case involved an employee who was absent for more than 12 months with a stress related condition after being assaulted by a pupil at the school where she worked as a senior teacher in charge of the ICT department.

A formal hearing was convened by the school. At that hearing the employee presented no medical evidence as to when she would be fit to return to work. The school had obtained two medical reports from its medical advisers in the course of the employee’s absence. When it attempted to obtain a third report, the employee declined to attend an appointment with the doctor but offered to supply information in writing about her condition. However, in a written reply she stated that she was unable to say whether she would be able to return to work in the foreseeable future or what the likely timescales would be. She was also unable to identify any adjustments that the school could reasonably be expected to make to facilitate her return to work.

Following the formal hearing the school decided to dismiss the employee. She appealed and an appeal hearing took place about two and a half months later. At the hearing the employee produced a Fit Note issued by her GP on the previous day stating that she was “fit for work” and a report from a psychologist obtained about 4 weeks after dismissal decision. That report identified mild depression and severe anxiety and referred to post traumatic stress disorder. It recommended 10 to 12 sessions of a certain form of therapy, without saying how long this would be expected to take or when the sessions would start. The appeal panel rejected the appeal, largely on the basis that the medical evidence submitted by the employee was inconsistent and there was no clear evidence as to whether she was actually fit to resume work or when she would be fully fit. The panel also considered that there was a risk of a relapse if the employee had a further encounter with a violent pupil and that the burden of continuing to retain the employee was too great for the school.

An Employment Tribunal found that the dismissal was unfair and amounted to discrimination for a reason arising from disability. Its reasons were essentially that (a) the school had adduced no satisfactory evidence about the adverse impact which the teacher’s continuing absence was having on the running of the school and (b) in the absence of such 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. It considered that the school ought to have sought clarification of the medical condition and the employee’s ability to cope with any future violent events by obtaining a further medical report before making a final decision.

On appeal the Employment Appeal Tribunal set the decision aside and remitted the case for re-hearing by a fresh Tribunal.
On a further appeal to the Court of Appeal, the Tribunal’s decision was restored, though the decision was not a unanimous one. The majority decided firstly that, as regards the impact of the long absence on the employer, it cannot be assumed that this will always be self-evident and the employer may need to give particularised evidence of the kinds of difficulty that the continuing absence is causing. The majority also decided that the new medical evidence presented at the appeal hearing needed to be considered and that the Employment Tribunal was correct in concluding that the school ought to have sought a further opinion from its own doctor before making a final decision. The minority in the Court described the new medical evidence produced at the appeal hearing as “demonstrably half-baked” and criticised the Tribunal’s approach as “unacceptably purist”.

What are the messages for employers? Firstly, where new medical evidence is produced by an employee at a dismissal or appeal hearing, the safer course is to have it assessed by the employer’s own medical adviser before making a decision. The employer may justifiably consider that it is “demonstrably half-baked”, particularly if it is inconsistent and lacking in detail, but a Tribunal or Court may not share this view. Secondly, when recording the reasons for a decision to dismiss for long term absence, it is good practice to make some reference to the adverse impact which the long absence has had, both on other staff and on the employer’s activities as a whole. Thirdly, bear in mind that if a dismissal decision comes to be scrutinised by a Tribunal, there will always be the risk that the Tribunal will be “unacceptably purist” in its approach and once a Tribunal has reached a reasoned decision against an employer, it is no easy task to get it overturned, even it is vulnerable to the sort of criticisms referred to above. One way for the employer to try to combat this risk is not to leave any obvious stones unturned, as the employer in this case made the mistake of doing.

If you have any questions about this subject or any employment-related legal issues, please contact your dedicated employment law solicitor. Alternatively, please call us on 01483 411 533 and we would be delighted to assist you.