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Case Law Update: O’Brien v Bolton St Catherine’s Academy

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Posted in:HR and Employment|April 5, 2017 | Join the mailing list

Ms O’Brien’s ordeal began in 2011 when she was assaulted by a pupil at Bolton St Catherine’s Academy whilst assisting a colleague with a disruptive student. Her physical injuries were not long-lasting in comparison with her mental reaction, resulting in an absence from the school and subsequent termination of her employment in January 2013.

In March 2017, the Court of Appeal confirmed that the decision of the Employment Tribunal in November 2014 was correct and should stand. In 2014, the Employment Tribunal found that Ms O’Brien’s condition amounted to a disability and that her termination of employment was discriminatory and unfair. The school went on to appeal the decision and in September 2015 the Employment Appeal Tribunal (EAT) allowed the school’s appeal. However in March 2017, the Court of Appeal overturned the EATs decision.

We have put together a number of top tips for employers when dealing with long-term sickness absence cases.

• Have a clear sickness policy.

• Keep in touch with your employee on a regular basis in relation to their condition (how regular will depend on the illness and circumstances)

Consult with the employee on the following matters–
o The extent of their illness
o Their likely date of return.
o Whether they require any adjustments to be made or is there alternative employment to consider.
o Have a plan for their eventual return to work, if relevant
o Consider how the absence will affect the business and ensure there is supporting evidence on the impact

• Consider obtaining medical evidence on the employee’s condition and ensure you follow the requirements under the Access to Medical Records Act 1988. You need to also ensure that the medical evidence is current before taking any decisions (including the decision to dismiss)

• If during the disciplinary process (including an appeal) the medical position has changed and an employee provides further evidence that he / she has recovered, the evidence should be considered carefully and not overlooked.

• When will it be fair to dismiss an employee in a case of long-term sickness absence? This will depend on the circumstances of the specific case. In the case of Ms O’Brien, she was absence for 14 months before the school terminated her contract of employment. The court found on the evidence that the dismissal was unfair.

To find out more about the issues raised in this post, or to discuss any queries regarding long term absence or dismissal get in touch with Michelle Gray or call +44 (0) 161 829 2599.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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