In O’Brien v Bolton St Catherine’s Academy [2017] EVCA Civ 145, the Court of Appeal gave guidance to employers on when it is reasonable to dismiss an employee who is absent from work due to ill-health where their prognosis is unclear.

Summary of the Case

Ms O’Brien was a teacher and was assaulted by one of the pupils at the school.  In the aftermath, she had a short period of absence and then returned to work.  Ms O’Brien was shaken by the incident and believed that the school authorities were not taking sufficiently serious the incidence of aggressive behaviour by students.  In particular, she was dissatisfied that the school were not reinstating their earlier policy under which pupils who assaulted staff were automatically excluded.  After some further incidents, Ms O’Brien was absent from work due to stress at work and subsequently there were other diagnoses including anxiety, depression and post-traumatic stress disorder.

Eventually, Ms O’Brien’s employer dismissed her after she had been absent from work for over a year on the basis of medical incapacity because at the time there was no evidence to suggest that she would be able to return to work in the near future.

Ms O’Brien appealed the decision to dismiss but it was upheld. This was despite Ms O’Brien producing a fit note stating that she was now fit to return to work as part of the appeal.


Ms O’Brien issued a claim of unfair dismissal and discrimination arising from disability and was successful in the Employment Tribunal.  The decision was overturned by the Employment Appeal Tribunal.

The Court of Appeal upheld the Employment Tribunal’s decision by finding that the dismissal was unfair and amounted to discrimination arising from disability.  The Court of Appeal did describe this as a “borderline” case due to the length of absence and the nature of evidence as to when Ms O’Brien would be fit for work.

Practical points going forward

In the Court of Appeal’s judgment, the following points should be noted by employers:

  1. The requirement to assess new evidence submitted at the appeal – In this case, despite the employee being off for over 12 months, the dismissal was held to be unfair because the employer should have considered the Statement of Fitness for Work signed by the GP presented at the start of the appeal hearing and the letter from the psychologist that suggested the treatment required. On this basis, you should not ignore evidence regarding fitness for work where the new information is provided at an internal appeal.  If new evidence is provided, you should make further investigations including obtaining any appropriate medical evidence from external medical advisers or occupational health before taking a view.
  1. Provide evidence on the impact that the employee’s continued absence will have on the business – Evidence could include the additional costs to the business, what steps have been taken e.g. who has been appointed to cover the workload and how any duties of the employee have been allocated to other members of staff. Including this information in the dismissal letter to show the impact that the absence has had on the business is a good way to evidence the effects.
  1. You do not need to wait indefinitely – It is not necessary to wait forever for the employee to be well enough to return to work. What is clear from this case is that it is important to show why dismissal was necessary at that point in time.  You need to consider the impact of the absence, the length of the absence, the reasonableness of waiting a longer period of time for the employee to return to work and evidence on when the employee may be in a position to return to work.

If you require any advice on dealing with an employee who is absent from work due to ill-health, please contact Farleys’ Lancashire and Manchester based employment law solicitors on 0845 287 0939 or submit your enquiry online.