O'Brien v Bolton St. Catherine's Academy

The Court of Appeal considered claims of ordinary unfair dismissal under section 98 of the Employment Rights Act 1996 and disability discrimination arising under section 15 of the Equality Act 2010 (with unlawful dismissal rendered unlawful by section 39(2)(c)). The Employment Tribunal had found the dismissal disproportionate and therefore discriminatory and substantively unfair because the employer had not demonstrated the adverse impact of the employee’s continued absence and because, on the fresh medical evidence before the appeal panel, it would have been reasonable to obtain up-to-date occupational health clarification rather than dismiss immediately.

The Employment Appeal Tribunal allowed the employer’s appeal and ordered a re-hearing. The Court of Appeal allowed the employee’s appeal against the EAT: it held that by the time of the appeal hearing there was some evidence that the claimant might be fit to return and that the employer, if in doubt, should have sought a short further medical assessment by its occupational health provider rather than immediately confirm dismissal. The court therefore concluded the Employment Tribunal had not erred in law in finding the dismissal disproportionate/unreasonable and directed that the remedy stage proceed.

Background and parties: The appellant was a long-serving teacher and head of the information and communication technology function at the respondent academy. She was assaulted by a pupil in March 2011 and subsequently developed work-related stress, anxiety and post-traumatic stress disorder. After more than a year off work she was dismissed for medical incapacity on 31 January 2013. The Employment Tribunal (ET) found the claimant disabled and upheld claims of ordinary unfair dismissal and discrimination under section 15 of the Equality Act 2010; it dismissed other pre-dismissal complaints. The school appealed to the Employment Appeal Tribunal (EAT), which allowed the employer’s appeal and remitted the claims for re-hearing. The Court of Appeal heard the employee’s appeal against the EAT decision.

Nature of the claims:

• Ordinary unfair dismissal under section 98 Employment Rights Act 1996 (capability/health).
• Disability discrimination under section 15 Equality Act 2010 (unfavourable treatment arising from something in consequence of disability) with unlawful dismissal under section 39(2)(c).
• Also pleaded: automatic unfair dismissal, direct discrimination, wrongful dismissal and holiday pay; only ordinary unfair dismissal and the section 15 claim were material on this appeal.

Procedural posture: ET judgment (sent 6 November 2014) upheld unfair dismissal and s15 claims and directed a remedy hearing. EAT (HHJ Serota QC, 18 September 2015) allowed the employer’s appeal and remitted the case for re-hearing. The Court of Appeal ([2017] EWCA Civ 145) allowed the employee’s appeal against the EAT and ordered the case to proceed to remedy before a differently constituted tribunal.

Issues framed by the court:

• Whether the Employment Tribunal erred in law in finding the dismissal was disproportionate under section 15 of the Equality Act 2010 because the employer had not adduced sufficient evidence of the adverse impact of the claimant’s absence and should have waited longer (or obtained further occupational health evidence) before confirming dismissal.
• Whether the ET wrongly applied the section 15 test at the date of the appeal hearing rather than the date of the original dismissal, and whether the ET improperly conflated the tests for unfair dismissal and discrimination.

Court’s reasoning and conclusions: The Court of Appeal (Underhill LJ, with Etherton MR agreeing; Davis LJ dissenting on outcome) held that the composite decision to dismiss comprised both the original decision and the failure of the appeal; accordingly the appeal panel was obliged to assess the fresh evidence produced at the appeal hearing. By the appeal hearing there was at least some (if imperfect) evidence that the claimant might be fit to return. The tribunal’s concerns about the employer’s lack of evidence about the impact of continued absence and its conclusion that a short further occupational health assessment would have been a less discriminatory/less intrusive response were open to it. The court held there was no error of law in the ET’s approach and allowed the appeal, remitting the matter to a remedy hearing. The court emphasised that the case was near the borderline because of the long absence and imperfect medical evidence but that the ET was entitled to find the employer’s response fell outside the range of reasonable responses in the particular circumstances.

This was an appeal from the Employment Appeal Tribunal. The Court of Appeal allowed the employee’s appeal and restored the Employment Tribunal’s findings that the dismissal was disproportionate under section 15 Equality Act 2010 and substantively unfair under section 98 Employment Rights Act 1996. The court held that by the time of the appeal hearing there was some evidence that the claimant might be fit to return and that the employer, if in doubt, should have sought a short further occupational health assessment rather than immediately confirm dismissal; accordingly no error of law was shown in the ET’s decision and the case was remitted to a remedy hearing.

Employment Tribunal (Manchester) judgment sent 6 November 2014: found claimant disabled and upheld ordinary unfair dismissal and s15 Equality Act 2010 claims; Employment Appeal Tribunal (HHJ Serota QC) judgment 18 September 2015: allowed employer’s appeal and remitted for re-hearing; Court of Appeal [2017] EWCA Civ 145 (15 March 2017): allowed employee’s appeal against the EAT and remitted to remedy before a differently constituted tribunal.