Case law: Employer given fresh evidence of disabled employee's possible return to work should reconsider decision to dismiss
Employers presented with fresh evidence indicating a possible return to work by a disabled employee on long-term absence, should reconsider a decision to dismiss them if the evidence shows dismissal may no longer be justifiable, a Court of Appeal ruling makes clear.
This update was published in Legal Alert - May 2017
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A senior teacher had been off work for 14 months after being assaulted by a pupil. The assault caused her acute stress, meaning she was disabled for the purposes of discrimination law.
After discussions and attempted meetings about returning and any reasonable adjustments it might make, her employer took the view there was no immediate prospect she would return, and decided to terminate her employment.
At her internal appeal hearing under the school's sickness absence management procedure, she produced fresh medical evidence from her GP saying her return to work was imminent. Her GP had previously said she was not fit to return. The employer pressed on with her dismissal in any event and she claimed disability discrimination.
The employer argued that her dismissal was not unlawful discrimination as it was a proportionate means of achieving its legitimate aim of running an efficient school, maintaining a good standard of teaching, and keeping costs down.
The Court of Appeal found there had been disability discrimination which the school could not justify. Although the original decision to dismiss her was justifiable, the fresh medical evidence raised the possibility that dismissal was no longer justified. While her situation was 'near the borderline' (because she had been off work for so long, and the medical evidence was not wholly satisfactory) her employer should, at the least, have referred her to its occupational health advisers before pressing on with the dismissal.
- Employers presented with fresh evidence indicating a possible return to work by a disabled employee on long-term absence, who it proposes to dismiss (or discipline in any other way) should consider whether to review its decision if the evidence raises the possibility that dismissal may no longer be justifiable
Case ref: O'Brien v Bolton St Catherine's Academy  EWCA Civ 145
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