Long Term Sick Absence Dismissals: Avoiding the Pitfalls
Author: Keith Potter
For many employers dismissing an employee for long term sick absence is probably regarded as one of the more straightforward tasks. The relevant case law has been established for about 40 years and the basic principles are well understood.
However, as a recent Court of Appeal case showed, long term sickness dismissals are not always as simple as they may seem. The case concerned an employee who was absent for more than 12 months with a stress related condition after being assaulted by a pupil at the school where she worked as the senior teacher in charge of the ICT department.
During the teacher’s absence the school obtained two medical reports from its medical advisers. The employee obstructed the school’s attempt to obtain a third report, by declining to attend an appointment with the school’s nominated doctor but she offered to supply information in writing about her condition. Some written questions were put to her by the school. In a written reply she stated that she was unable to say whether she would be able to return to work in the foreseeable future or what the likely timescales would be. The school asked the teacher to attend a formal hearing to consider whether she could be allowed to remain in employment. At the hearing she presented no medical evidence as to when she would be fit to return to work. Nor was she able to identify any adjustments that the school could reasonably be expected to make to assist her in returning to work.
Following the formal hearing the school decided to dismiss the teacher. She exercised her right of appeal and an appeal hearing before a panel of governors took place some two and a half months later. At the appeal hearing the employee produced a Fit Note issued by her GP on the previous day stating that she was “fit for work”, but did not elaborate on this. She also submitted a report from a psychologist which she had obtained about 4 weeks after the dismissal decision but had not previously presented to the school in support of her appeal. That report stated that she was suffering mild depression and severe anxiety and referred to post traumatic stress disorder. It recommended 10 to 12 sessions of a certain form of therapy but did not suggest how long this would be expected to take or when the sessions would start. The governors were not impressed by the material submitted by the teacher and rejected the appeal, largely on the basis that the teacher’s medical evidence was inconsistent and there was no clear evidence as to whether she was actually fit to resume work or when she would be fully fit. They also considered that there was a risk of a recurrence of the medical problems if the employee had a further encounter with a violent pupil and that the burden of continuing to retain the employee would be too onerous for the school.
An Employment Tribunal ruled that the dismissal was unfair and amounted to discrimination for a reason arising from disability. It expressed concern that the school had presented no satisfactory evidence about the impact which the teacher’s continuing absence was having on the running of the school. It decided that in the absence of such evidence the school could reasonably have been expected to wait “a little longer” to see if she would be able to return to work, particularly in the light of the supposedly encouraging evidence available at the appeal hearing. It also thought that the school ought to have sought clarification of the medical condition and the employee’s ability to cope with any future violent events by obtaining a further medical report before making a final decision. In the light of the employee’s previous refusal to attend a further appointment with a doctor, it is legitimate to question how successful an attempt to obtain clarification would have been.
At an appeal hearing the Employment Appeal Tribunal set the Employment Tribunal’s decision aside and remitted the case for re-hearing by a fresh Tribunal.
The case was then appealed to the Court of Appeal. By a 2:1 majority the Court decided to restore the Employment Tribunal’s decision. The majority decided firstly that it should not be treated as self-evident that a long term absence will have a serious adverse impact on an employer. It suggested that as a general rule an employer’s evidence may need to include details of the kinds of difficulty that a continuing absence is causing, for example by imposing extra demands on other staff to cover the work of the absent employee or causing additional costs to be incurred. The majority also decided that the new medical evidence presented by the teacher at the appeal hearing ought to have been more carefully considered and that the Employment Tribunal had correctly concluded that the school ought to have sought a further opinion from its own doctor before making a final decision. The judge in the minority in the Court was far more robust in his approach, describing the new medical evidence produced by the teacher at the appeal hearing as “demonstrably half-baked” and criticised the Tribunal’s approach as “unacceptably purist”.
What are the lessons for employers? Firstly, where new medical evidence is produced by an employee at a dismissal or appeal hearing, employers should think carefully about having it assessed by the employer’s own doctor before making a decision. The employer may well think that it has good reasons to regard any such new medical evidence as “demonstrably half-baked”, particularly if it is inconsistent and lacking in detail, but persuading a Tribunal or Court of this is a different matter. Secondly, when writing to an employee setting out the reasons for a decision to dismiss for long term absence, it is good practice to refer not just to the medical evidence but also to the adverse impact which the long absence has had on other staff and on the employer’s activities as a whole.
There will always be the risk that the fairness of a dismissal decision will be examined by a Tribunal which, as in this case, will adopt an approach which many people, in common with the Court of Appeal Judge, would regard as “unacceptably purist”. The fact is that once an Employment Tribunal has reached a reasoned decision against an employer, it is no easy task to get it overturned. If there was evidence before the Employment Tribunal to support the decision which it reached, the higher court (i.e. the Employment Appeal Tribunal or the Court of Appeal) will generally be reluctant to interfere with the decision, even if it is vulnerable to the sort of criticisms referred to above. The higher court will adopt the principle that the Tribunal’s job is to find the facts and reach a decision and its ruling is to be respected unless it involves a legal error or is perverse. The employer in this case probably made the mistake of leaving one too many stones unturned.