Disability and longterm sickness absence dismissal guidance

2017-03-27 Jennifer Renney posted:

Employers and employees will welcome the guidance provided recently by the Court of Appeal on the long-term sickness absence dismissal of a disabled employee in O'Brien v Bolton St Catherine’s Academy.

This case involved a long-term sickness dismissal in which both unfair dismissal and discrimination arising from a disability were claimed. The guidance in the judgment is that, in a long-term sickness absence discrimination case:

  • the decision to dismiss should be assessed as at the date of any internal appeal decision (so that any new evidence that has come to light since the original decision to dismiss should be taken into account)
  • the impact of the absence on the employer will be a significant factor in whether dismissal is a proportionate response
  • if the impact of the absence on the employer is obviously very severe then a general statement to that effect may be all that is required. If it is not, then more detailed evidence should be produced
  • ultimately employers are entitled to some finality. That is all the more so where the employee has not been as co-operative as the employer is entitled to expect about providing an up-to-date prognosis and where the evidence relied on is produced late in the day and is not entirely satisfactory.

If this affects you, call us for advice at 01225 632240 or email info@renneyandco.com.

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