Long term sick and capability dismissal

Long term sick employees can be an expensive problem. Employers often find it difficult to determine how long to wait before dismissing on the grounds of capability.

A recent Court of Appeal decision in O’Brien V Bolton St Catherine’s Academy provides useful guidance on this subject: O’Brien, a teacher at Bolton St Catherine’s Academy, was assaulted by a pupil which resulted in her being diagnosed with anxiety, depression and post-traumatic stress disorder.
After a year off work, O’Brien was dismissed as the employer believed that there was no evidence that she would return to work in the near future. However, O’Brien then produced a fit note at an appeal hearing stating she could return soon. However the employer disregarded this and upheld the decision to dismiss her.

After a tribunal and subsequent Court of Appeal hearing, the dismissal was found to be unfair and to amount to disability discrimination. The lesson from this case is that employers should not rush to dismiss a long term sick employee.

Here are some important steps to take before dismissing:

1. Give employees time to gather evidence to support their return to work.
2. Take advice from the GP and occupational health on an employee’s ability to return.
3. Make reasonable adjustments for meetings, to ensure that the employee is able to attend.
4. Consider all alternatives to dismissal, such as reduced hours, amended duties, alternative jobs etc. Only once all alternatives have been exhausted should the capability dismissal be confirmed.

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