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Sickness absence & disability discrimination

Sickness absence & disability discrimination
O’Brien v Bolton St Catherine’s Academy

Section 15 of the Equality Act 2010 provides that it is discrimination to treat a disabled person unfavourably because of something arising in consequence of his or her disability – although there is a defence if the employer can show that the treatment is a proportionate means of achieving a legitimate aim.

It is clear that dismissing someone because of long-term sickness absence (which will usually be caused by a condition classed as a disability) is capable of amounting to discrimination under s.15, and of course the employee may also bring a claim of unfair dismissal. In O’Brien v Bolton St Catherine’s Academy the Court of Appeal looked at how these two claims relate to each other.

Dismissal on the grounds of incapability

Ms O’Brien was a teacher who, in 2011, was assaulted by one of the pupils in her academy and consequently developed post-traumatic stress disorder (PTSD), and associated anxiety and depression. This led to her being off-sick for just over a year, before she was eventually dismissed on the grounds of incapability. At the time of her dismissal hearing, there was little indication that she was likely to return within a reasonable time frame and Ms O’Brien had been less than helpful in response to enquiries from the employer as to her prognosis. She was dismissed with immediate effect, but with a payment in lieu of notice. Her internal appeal was held almost three months later and by that time she had a fit note saying that she was fit for work. Nevertheless, her appeal was rejected. The employer was not convinced that she had made a full recovery and felt that her absence of 14 months was too great a burden for the academy to bear.

The decision of the court

A tribunal found that the dismissal amounted to discrimination under s.15. While the employer did have a legitimate aim in dismissing Ms O’Brien – the efficient running of the academy and the need to reduce costs and maintain a high standard of teaching – the Tribunal did not consider that the dismissal was a proportionate means of achieving this aim because she had produced medical evidence showing she was now fit to work. The Tribunal felt that the employer should not have rejected the medical evidence out of hand, at least not without getting a further occupational health report.

The case reached the Court of Appeal, which, by a majority, upheld that finding. The Tribunal had been entitled to reach the conclusions that it did on proportionality in relation to the s.15 claim. While the Tribunal should not have given the impression that the mere fact that a dismissal was contrary to s.15 meant that it inevitably was also an unfair dismissal, Lord Justice Underhill said that: “it would be a pity if there were any real distinction in the context of dismissal for long-term sickness” between the tests for discrimination and unfair dismissal. The Court of Appeal also added that the fact someone has been off work for over a year will mean that a dismissal can be justified, unless there are unusual circumstances (as there were here).

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