Hello, as its now the beginning of October and thus the start of the cold season we thought it fitting that today’s Case of the Week concerns long term sickness and medical incapacity.
The question this week is:
What does medical evidence an employer need before dismissing an employee who is a long-term absentee for medical incapacity?
Ms O’Brien, the Claimant, worked for Bolton St Catherine Academy, the Respondent, as a Head of ICT. The Respondent is a school where many pupils displayed aggressive behaviour.
The Claimant was a long serving teacher who was well respected by staff and had an exemplary disciplinary and sickness record. The Claimant was assaulted by a pupil and this caused injury and stress resulting in the Claimant being absent from work.
On her return, the Claimant relapsed when seeing the pupil in the corridor. She returned to work again but another relapse caused her to cease work. In her absence, the Claimant’s teaching duties were covered by part-time teachers on overtime and temporary staff.
The Respondent received medical reports that gave no indication of when the Claimant would be able to return, if at all. Meanwhile, the Claimant and her GP were not forthcoming with any information that might help the Respondent make adjustments to aid a possible return to work.
Without further evidence, the Respondent called a medical incapacity hearing. At the hearing, the Claimant said she did not know if/when she would be able to return to work and said she would be in a better position to decide after 3 months of therapy. The Respondent decided to dismiss the Claimant for three reasons:
1 – 12-month continuing absence with no set date of return
2 – No signs of improvement to enable return
3 – High possibility of the illness recurring, resulting in further absence
The Claimant appealed the decision but this was rejected and she bought disability discrimination and unfair dismissal claims before the Employment Tribunal. The ET ruled that the Claimant had been discriminated against by the Respondent as they had not waited for further medical evidence before making the decision to dismiss, this made the dismissal unfair.
The Respondent appealed to the Employment Appeal Tribunal. The EAT allowed the appeal and stated that the reasons were given by the Respondent and the financial impact of having to arrange cover for further absence justified the decision. It went on to say that the issue was not whether the Respondent could accommodate the Claimant’s prolonged absence but whether it should be required to do so.
Employment Law Solution
The takeaway point is that an employer does not only need medical evidence before deciding whether to dismiss for medical incapacity but also financial and logistical. In this case financing and organising cover for a senior member of staff for over 12 months was a cost the Respondent could not cope with and thus the dismissal was fair.
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