In O’Brien v Bolton St Catherine’s Academy the Court of Appeal has given useful guidance on the correct standards to be met in justifying a capability dismissal arising from an employee’s long-term absence through ill health.
Mrs O’Brien was the head of IT at Bolton St Catherine’s Academy. On 25 March 2011, she was assaulted by one of the pupils at the school. The physical consequences of the assault were fortunately not very grave and she had only a short period off work in the immediate aftermath. However she remained very shaken by the incident and felt unsafe in parts of the school. Her duties were restricted accordingly but she believed that the school authorities were not taking sufficiently seriously the incidence of aggressive behaviour by students. In particular, Mrs O’Brien was dissatisfied by the school’s refusal to reinstate an earlier policy under which pupils who assaulted staff were automatically excluded.
After some further incidents, on 9 December 2011 she began a lengthy period of absence. The initial diagnosis was stress at work but there were subsequently other diagnoses, including anxiety, depression and post-traumatic stress disorder.
At the time of her dismissal, the Claimant had been absent from work for more than a year and there was no certainty as to when she would return. As the Court of Appeal acknowledged, the Claimant’s case that her dismissal could not be justified at that stage was very weak, and any finding that such a dismissal was unfair would require considerable scrutiny.
However, at her appeal hearing, Mrs O’Brien produced evidence that she was fit to return to work imminently. She produced both a Fitness for Work signed by her GP and a letter from an Associate Psychologist, although there were some inconsistencies in the documents produced. The school rejected this new evidence as inconclusive in light of the other medical evidence available.
However, the tribunal held it was unfair and discriminatory for the school not to make further enquiries concerning this new medical evidence and seek clarification from its own medical experts, particularly given this would have only involved a short delay.
The EAT disagreed but their decision was overturned by the Court of Appeal who held that under these unusual circumstances, the failure to take this new evidence into account rendered the dismissal both unfair and discriminatory.
The Court of Appeal rejected a submission that the employment tribunal had conflated the tests for unfair dismissal and discrimination arising from disability and stated that despite differences in the statutory wording and the burden of proof, they should rarely lead to different results in the context of long-term sickness. A failure to consider them separately will not be an error of law.
The case is support for the proposition that although the tests for unfair dismissal and discrimination arising from disability are different in such cases, it should be a rare occurrence where one does not follow the other.
The case is also a salutary reminder that if an employer receives new information prior to an employee’s employment coming to an end, it is always prudent to consider it. We would suggest this is probably still the case even where an appeal process has been concluded and an employee is simply serving out their notice, even if they are on garden leave until their employment ends.
O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145
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