Recent guidance from the Court of Appeal has provided some clarification around ‘borderline’ cases for dismissals of employees on long-term sick.

In O’Brien v Bolton St Catherine’s Academy, a long-standing case, a teacher went off on long-term sick after an incident where she was attacked in school by a pupil. She returned after her initial injuries but she did not feel safe or that her concerns regarding safety had been resolved in the school.

The school contacted her while she was off sick to try and arrange to discuss what amendments were needed in order for her to feel safe to return. The teacher did not feel able to attend and referred the school to speak to her GP. The school said there was no indication that the teacher was going to return so the school held a formal medical incapacity hearing and dismissed the teacher. The teacher submitted a fit note from her GP during the appeal but the school questioned its validity.

At an employment tribunal, a ruling of unfair dismissal was given due to disability. An appeal then overturned the decision and supported that the school had to take action due to the length of time the teacher was off and did not need to provide evidence of the impact her absence had had on the school. However, the decision was reinstated by the Court of Appeal despite having a split vote.

The Court of Appeal reinforced that there will come a time after 12 months where the employer has to make a decision but that the impact of the absence on the employer must be considered and evidenced – there must be evidence produced of the impact an absence has on the school. The dismissal must also be based on all the current medical information at that point. All information must be considered and fully investigated. Their reason for upholding the unfair dismissal ruling was that the school should have undertaken further investigation following the fit note.

This guidance reminds employers that ongoing documentation of absence management must be kept, the impact on the school must be noted and all documentation must be investigated. SAM can help you to retain the necessary information within case files so that it is easily updated, accessed and, if needed, downloaded for evidential purposes. If you would like to receive a free demonstration of our SAM software please get in touch on 01924 827869.

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