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25 November 2015

Stress and long-term sick leave – employers beware

Every employer should know that the greatest care is called for when employees go on long-term sick leave, suffering from stress. In one case which illustrates the point, a school which dismissed a senior teacher on medical grounds after she was assaulted by a pupil found itself facing claims of unfair dismissal and disability discrimination (Bolton St Catherine's Academy v O'Brien).

Ms O'Brien was a long-serving teacher at Bolton St Catherine's Academy, having commenced employment with the school in 2000, prior to its achieving academy status. She was a well-regarded member of staff with a clean disciplinary record and no history of unacceptable sickness absence.

In March 2011, she had suffered physical injuries and acute stress as a result of the assault. She had returned to work for a short period, but suffered a relapse after seeing the pupil again. A further attempt to get back to the classroom also failed and, by that time, her condition amounted to a disability within the meaning of the Equality Act 2010.

She had been on sick leave for 12 months when the school activated its sickness management policy and convened a meeting before a panel of governors. Although Ms O'Brien was undergoing therapy, there was no firm medical evidence as to when, if ever, she would be fit to return to work and she was ultimately dismissed on grounds of medical incapacity.

In upholding Ms O'Brien's unfair dismissal and disability discrimination claims, the Employment Tribunal (ET) found that the school had failed to show that her dismissal was a proportionate means of saving costs and fostering the efficient running of the school. There was no evidence before the governors that her absence was having an adverse impact on the school's business. A less discriminatory response would have been to wait a little longer to see if she recovered.

In upholding the school's challenge to that decision, however, the Employment Appeal Tribunal noted that it was obvious that the long-term absence of a senior teacher was bound to have an adverse impact on the school, including the additional expense of arranging cover for her duties.

The ET had failed to grapple with the issue of how long the school could be expected to wait for Ms O'Brien's recovery and, in finding that her dismissal lay outside the reasonable range of responses available to her employer in the circumstances, had substituted its own views for those of the employer.

The case was sent back to a freshly constituted ET for rehearing.

For advice regarding dismissal and discrimination claims, contact a member of the employment law team by calling 01753 279029, or emailing employmentlaw@bpcollins.co.uk.

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