Chris Moses: When dismissing staff with long term sickness problems can be justified

This story is over

Employers do not generally welcome the prospect of dealing with long term sickness amongst their employees.

Absent staff cost money, not only in terms of sick pay but also getting other staff to cover for them, and the knock on effects productivity.

However, mismanaging such staff can prove extremely expensive if the problem results in claims for Disability Discrimination.

Consequently employers have to walk a tightrope between meeting their legal obligations towards someone with a disability, against the practicalities of running a business.

Employers can become paralysed with fear of litigation, and remain in a state of limbo, with staff remaining off work and no action taken.

However according to a recent Court of Appeal Case (O’Brien v Bolton St Catherine’s Academy) “there comes a time when an employer is entitled to some finality” (Lord Justice Underhill).

The comments refer to an employee who was absent with stress and anxiety for over twelve months, and who was eventually dismissed.

Pivotal to the school’s decision to dismiss O’Brien was the fact that they had struggled to get medical information from the employee’s doctor, along with the disruption her absence was having upon the school.

With regards this latter point, the school believed the dismissal was justified in pursuit of a legitimate aim at being able to reduce disruption to the education of children.

This “justifiable” argument was criticised at the employment tribunal where O’Brien claimed Disability Discrimination, due to the fact that there was no evidence provided to support it.

However, at the appeal the judge said that there was no need for such analysis.

According to the employment appeal tribunal the original tribunal should have used its common sense to take into account the disruption that would be caused by the long term absence of a senior teacher.

Furthermore, according to the employment appeal judge, employers do not need to engage management consultants to appreciate the significant impact of such absence.

An employer should be able to rely upon a common sense assessment of the damage caused to their business, as a result of staff being absent on long term sick leave.

The extent of that damage could justify the need to dismiss a disabled employee, in pursuit of legitimate business needs.

In March 2017 this case came before the Court of Appeal, who decided that the employee had suffered Disability Discrimination, but only because the school hadn’t pursued medical reports and investigated O’Brien’s claim at the point of her dismissal, that she had recovered and could come back to work.

However, what is of interest is that the Court of Appeal has not challenged the ‘common sense assessment’ argument, and that a dismissal could be justified to reduce disruption.

Key points for employers

Always be prepared to go the extra mile when investigating capability, in relation to a potential dismissal.

If an employee claims that they are “on the mend” and able to come back, or that they could come back with changes to their job, or a different job, the employer needs to conduct a proper investigation and get the medical evidence to check such claims.

Frustrating as it may feel to drag the process out even further, the benefits can be immeasurable in being able to defend any Disability Discrimination claims.

Secondly disruption, cost and reducing the impact upon business efficiency are arguments that can potentially be used to justify dismissing an employee on long term sick leave.

However caution should be exercised, and an employer does need to demonstrate the magnitude of the disruption and the need to remove such a damaging state of affairs.