Occasionally you may need to terminate a contract because of long-term sickness absence. A recent Court of Appeal decision has highlighted the importance of dealing very carefully with appeals for dismissals on capability (ill health) grounds.
Mrs O’Brien was a teacher at Bolton St Catherine’s Academy. She was absent from work on ill health grounds for over a year with anxiety, depression and post-traumatic stress disorder (following an assault by a pupil). At the time she was dismissed Mrs O’Brien was optimistic about a new treatment, but as there was no medical evidence to support her views, she was still dismissed. The school had concluded it could not wait any longer for her to return. However, by the time her appeal hearing took place, things had changed and Mrs O’Brien produced a Fit Note saying she was fit to work. The school, however, rejected her appeal, believing the Fit Note was a way of returning to work before she was fully fit.
Mrs O’Brien successfully won a case for unfair dismissal and disability discrimination. This was based on the fact that Mrs O’Brien produced new information at her appeal hearing, which was not properly taken into account – they found her original dismissal to be “very weak” in any case so Mrs O’Brien had a very good case.
This is an important judgement for ill health dismissal appeals. You must carefully consider new information or evidence about an employee’s medical condition if this is raised at an appeal. If you think that the original medical advice you were relying on could be out of date, further occupational health (or other) medical evidence must, therefore, be obtained before any decision is made.
This point is not restricted to ill health situations. In any appeal, if you are presented with any new information or evidence which was not available at the time of the original decision, you must consider it carefully. A failure to do so may otherwise render a dismissal unfair or discriminatory.
If you have any questions on how this can affect your organisation please contact advo hr at our Maidstone head office.