When employers must wait “a little longer”: lessons from the Court of Appeal on long-term sickness absence dismissals

In O’Brien v Bolton St Catherine’s Academy, the Court of Appeal issued guidance on when it may be reasonable and proportionate to dismiss an employee on long term sickness absence.

Ms O’Brien was on sick leave for over a year for stress when her employment was terminated due to capability. Ms O’Brien failed to give any indication when she would return to work until her appeal hearing, where she produced a fit note confirming that she was able to return to work imminently, and psychiatrist’s letter suggesting she would recover following a course of treatment. Despite this, the Academy rejected her appeal on the basis that Ms O’Brien’s evidence was unclear and contradictory.

The Court of Appeal found that the dismissal was unfair as the Academy had failed to take the new medical evidence into account and its actions amounted to discrimination arising from disability under s15 of the Equality Act 2010. The Court of Appeal rejected the Academy’s argument that the test for discrimination arising from a disability was materially different from the test for unfair dismissal. The Academy should have waited a little longer to establish when Ms O’Brien was going to return to work.

Whilst employers are not expected to wait indefinitely for those on long term sick leave to return to work, employers must be able to demonstrate why it was necessary and reasonable to dismiss at that point in time.