Case Law: A discriminatory decision to dismiss is very likely also to be unfair dismissal

10th July 2019

In O’Brien v Bolton St Catherine’s Academy, the Court of Appeal considered whether a dismissal could be fair if it has been found to be discriminatory.

Mrs O’Brien was a teacher and head of department. She was assaulted by a pupil and developed a stress-related illness which led to 12 months of sickness absence. During this time, two Occupational Health (OH) reports stated she was not fit to return to work. The school consulted the employee about the likelihood of her return to work but she referred the school to her GP. The GP referred the school back to Mrs O’Brien.

Frustrated with the lack of progress in this matter, the school began medical incapacity proceedings. Mrs O’Brien stated during the proceedings that she was receiving treatment for PTSD and hoped to have a phased return to work in a few months’ time. Despite this, the school took the decision to dismiss on the basis of the length of her absence, the lack of any clear information on her likely return to work and a concern that a similar assault could recur. At the internal appeal, Mrs O’Brien presented evidence from a psychologist of likely recovery within 12 sessions of treatment (which she had had by the date of the appeal hearing) and a GP fit note stating she was fit for an immediate return to work. The appeal panel upheld the decision to dismiss based on the inconsistency of the medical evidence and concerns that she was trying to return to work before she was really fit to do so.

Mrs O’Brien brought claims for unfair dismissal and discrimination arising from disability, both of which were upheld by an employment tribunal. On the disability claim, the tribunal found that she had been dismissed because of her long term absence and that absence arose as a consequence of her disability. The tribunal found that the school’s decision to dismiss was not justified as the school had not presented satisfactory evidence of the adverse impact of the continuing absence on the operation of school. Neither had the school weighed up the impact on Mrs O’Brien of dismissing her at that point against the costs to the school of organising cover for a few more months. The tribunal decided that the school could have waited a little longer and obtained a further medical report to support its view that Mrs O’Brien was not fit to return.

The tribunal also held that an employer who had failed to conduct the balancing exercise required to justify its discriminatory decision could not have made a decision to dismiss which fell within the band of reasonable responses.

The EAT disagreed, but the Court of Appeal upheld the original judgment of the employment tribunal. The Court of Appeal noted that the school should have assessed the new medical evidence presented to the appeal panel and sought further evidence on Mrs O’Brien’s fitness for work if it doubted the new evidence. It also held that the tribunal was entitled to find that the school should have provided more particularised evidence of the difficulties caused to the school by the absence.

The Court of Appeal noted that the justification test for the discrimination claim and the band of reasonable responses test are not the same but held that it was legitimate for the tribunal to find that an unjustified discriminatory decision to dismiss could not fall within the band of reasonable responses for unfair dismissal purposes.

In such cases, schools must be cautious of being seen merely to go through the motions, following an absence procedure without evidence to justify its claim that it could not wait.  Assumptions are always a weakness in any decision to dismiss. In most cases employer disciplinary and appeal panels are not medically qualified, so it is difficult and dangerous for them to ignore or contradict medical evidence without some reasoned professional opinion to support the approach they do take.

For support on Sickness Absence cases, please contact your HR Consultant on 0161 850 4343

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