Long-term sickness absence – just when can an employer say “enough is enough”?

What would you have done as the employer (an academy) in this situation?

• A teacher was assaulted by a pupil. She took a short period of time off to recover from the physical consequences (fortunately not grave), but then went off sick for over a year with stress, anxiety, depression and post-traumatic stress disorder.
• During her period of absence, the school arranged for her to undergo a course of CBT and referred her twice to an occupational therapist.
• Around 11 months into her absence, the school tried to arrange a meeting with her to discuss her continuing absence, the latest report from OH and whether there were any adjustments that could be made to facilitate her return.
• The teacher declined to attend, on the basis that she had nothing more to say and the meeting would upset her, so the school (at the trade union's request) sent her a list of nine questions to answer. The teacher at first failed to reply and when she did she said she was not qualified to answer many of the questions and suggested that OH contact her GP. The school wrote to the GP, who eventually responded to say that he was unable to answer and the school should speak to the teacher!
• The school then invited the teacher to attend a formal incapacity hearing under the school's procedures, 13 months into the teacher's absence.
• At that meeting, the teacher said that she had recently been referred to a therapist, that she would be having seven sessions of therapy for PTSD (although there was no formal diagnosis of PTSD) and that she thought she would be fit to return a couple of months later, on the conclusion of her therapy, although she also said that the therapist would not be in a position to confirm fitness to work until the end of the course of treatment.
• The panel of governors hearing the case decided to dismiss and the teacher appealed.
• At the internal appeal hearing, the teacher presented two documents – a Fitness for Work statement signed by her GP saying she was "fit for work" (albeit that message was conveyed by the GP crossing out the word "not" in the sentence "not fit for work") and a letter from an associate psychologist six or seven weeks old, recommending a course of 10-12 sessions of treatment. The teacher told the appeal panel that she had undergone the treatment and was now fit to return to full-time work.
• The appeal panel upheld the decision to dismiss, concluding that the dismissal panel's decision had been a reasonable one. It felt (amongst other things) that there had been inconsistent medical evidence; that the fit note was an attempt by the teacher to get back to work before her condition was fully treated; that there was concern that there might be a relapse, and that the length of absence was too great a burden on the academy and its staff and pupils (this teacher was the head of ICT).

Some of you would, no doubt, have reached the same conclusion that the school governors reached in thinking enough was enough, and some of you I suspect would have taken the cautious approach and sought further medical confirmation of the teacher's fitness to work before deciding her future employment. These were the facts in a Court of Appeal case of O'Brien v Bolton St Catherine's Academy.

The Court of Appeal upheld an earlier Employment Tribunal decision that the dismissal was unfair and constituted unfavourable treatment arising from disability which was not justified, albeit with acknowledgement of the frustrations for the employer of this case and the recognition that the case was a borderline one.

The lessons for employers from the decision are as follows:

• Be prepared to provide at least some evidence of the detrimental impact of the employee's continuing absence. Sometimes the impact will be so severe as to be obvious, such that only a general statement of evidence will be needed; but if not, then more detailed evidence will need to be given. And the best time to provide that evidence would be at or before the dismissal hearing and again in the dismissal letter.
  Do not ignore evidence that the employee is fit, even if the evidence appears to be thin or questionable.
  If only a little longer is needed to get additional evidence of fitness, an employer may well be expected to wait a little longer, particularly where the wait is short compared to the length of absence and the employer has coped with the absence to date (despite the difficulties caused by it).
  In the case of a dismissal for long-term absence where the employee is disabled, a dismissal that fails the unfair dismissal test is also likely to fail the disability discrimination test.

Interestingly, one of the Court of Appeal judges disagreed with the judgement and expressed considerable sympathy for the employer. He felt:

• it was unreal that the Tribunal should have expected evidence of the detrimental impact of absence: in this case, it was obvious;
• it was wholly unsurprising that the school felt frustrated by the teacher's non-co-operation;

• the evidence of fitness provided by the teacher was demonstrably half-baked" and "entirely unsatisfactory";

• the GP's note "was cursory and evidenced no real engagement whatsoever with the psychological issues...";
• the psychologist's letter was "cautious and equivocal";
• it was not whether the appeal panel could have waited a little longer, but whether it should have done, and
• it could perfectly properly be concluded, some 17 months after the teacher first went off sick, that enough was enough.
• A borderline case indeed.