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My employee has been off for months – What can I do?


In a recent Court of Appeal case some useful guidelines on how to deal with long term absences has been given.

The facts of the case were, that the employee, Ms O’Brien was employed as head of a department at a school and she was attacked by a pupil. Her injuries were not serious and she returned to work after a short period.

When she returned she felt unsafe in the school and was unhappy with the way the school dealt with aggressive pupils, resulting with her being absent from work due to stress. Having been off for over a year, the school sought to obtain clarification on when she was likely to return to work and whether they would need to consider any reasonable adjustment to facilitate a return to work.

She refused to attend a meeting with the school to discuss her ongoing absence, as she felt that returning to the school may upset her. In order to obtain the medical information to assess her medical condition the school agreed that she could supply them with the information they required in writing.

She failed to provide any substantive information on when she was likely to return to work or highlight any barriers which were preventing her from returning. Instead she referred the school to her GP who was not able to confirm when she would be fit to return to work.

Based on the information available to them and following a formal medical incapacity hearing she was dismissed on the grounds of medical capability. At the time of the hearing there was nothing to indicate to the school that there was any evidence that she would be fit enough to return to work in the near term. The employee appealed the dismissal and presented a fit note from her GP indicating that her return to work was imminent. The school was suspicious of the timing and content of the fit note and questioned the positive diagnosis now being provided by her GP.

Ms O’Brien succeeded in her employment tribunal claims for discrimination arising from disability under the Equality Act and unfair dismissal.  However, the decision was later overturned by the Employment Appeal Tribunal, which held that the tribunal had gone too far in expecting the employer to cope with her absence any longer.

The case was subsequently examined by the Court of Appeal who upheld the original decision and restored the employment tribunal decision. The judgment of the Court of Appeal provides important guidance for employers when dealing with long term absences where the diagnosis and timeframe for recovery are uncertain.

The Court of Appeal concluded in this case that:

It is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty, where there is no certainty as to when they will be fit to return to work.While an employee can easily advance the argument “give me a little more time and I am sure I will recover”, there comes a time when an employer is entitled to some finality.

The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified. A tribunal considering a long-term sickness absence dismissal will expect some evidence of the disruption to the business, although in some cases the impact will be so obviously severe that a general statement from the employer to that effect will suffice.

Where an employee produces updated medical evidence at the appeal hearing, the decision to dismiss must be fair on the basis of the information available to the employee at the time of the appeal. To take an extreme example, an employee who has been diagnosed with a serious condition might find out that it was a misdiagnosis, and that the condition is in fact easily treatable.

The Court of Appeal were extremely critical of the school’s failure to obtain additional medical evidence after they had received the fit note from the GP stating that she was fit to return to work.

There are some key points arising from this case which you should bear in mind when dealing with long terms absences:

  • The Court of Appeal’s judgment made it clear that it did not expect an employer to wait forever for an employee to return to work after a long period of absence and that there could be grounds for dismissal even where there is a suggestion of an imminent return by the employee.
  • In considering whether to dismiss or not employers must balance such a decision in terms of the disruption the absence is causing the business.
  • They recommended that employers should maintain records and documentary evidence of the issues and difficulties the continuing absence is causing to the business e.g. the cost of having to hire someone else to cover for the absence or the additional workloads this may causing to colleagues etc.
  • That employers must look carefully at the medical evidence available to them throughout the sickness absence management process, including any evidence which appears between a decision to dismiss and subsequent appeal hearing.
  • This case demonstrates that whilst it is possible to bring an employee’s contract of employment to an end, given the sensitivities and complexities involved in managing long term absences and interpreting medical information, we would always recommend that you seek professional advice before taking any action.

If you would like further information or support on managing long term absences, then, speak to one of our advisors by calling 01455 444222 or complete our contact form and an advisor will be in touch shortly.

Angela Clay

A qualified employment law solicitor and our managing director, Angela has unparalleled legal expertise and decades of experience and knowledge to draw from. She’s a passionate speaker and writer that loves to keep employers updated with upcoming changes to legislation, and is a regular guest speaker on BBC Leicester Radio.

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