O'Brien v Bolton St Catherine's Academy

In a long-term-sickness dismissal, the fairness and justification of dismissal normally depend on the composite effect of the initial decision and the internal appeal. An appeal panel must engage with material new medical evidence, even where the appeal is described as a review.

The impact of continued absence is material to proportionality and fairness. The evidence needed to establish that impact depends on the circumstances and is principally for the tribunal to assess. A tribunal may find it disproportionate and unreasonable to confirm dismissal without a further occupational-health assessment where new evidence suggests that the employee is currently fit to return.

The assessments under section 15 of the Equality Act 2010 and section 98(4) of the Employment Rights Act 1996 may properly lead to the same result in this context. The range-of-reasonable-responses approach is not a perversity test.

A teacher was absent for over a year following an assault by a pupil. The academy dismissed her for medical incapacity in January 2013. At the internal appeal in April 2013, she produced a GP fit note and psychological evidence and asserted that treatment had enabled her to return to work.

The Employment Tribunal upheld her claims for ordinary unfair dismissal and disability discrimination arising from disability under section 15 of the Equality Act 2010. It held that the academy should have waited long enough to obtain updated occupational-health evidence. The Employment Appeal Tribunal allowed the academy’s appeal and remitted those claims for rehearing.

The central issue was whether the Tribunal had erred in treating the appeal decision, and the new medical evidence then available, as making the dismissal disproportionate and unfair.

1. Appeal allowed by a majority. Underhill LJ, with whom Sir Terence Etherton MR agreed, restored the Employment Tribunal’s findings of unfair dismissal and disability discrimination. The matter was to proceed to the remedy hearing already directed.
2. A dismissal confirmed on internal appeal is a composite decision. Although the academy’s procedure described the appeal as a review, the appeal panel had to consider material new evidence about the employee’s medical condition and prognosis. That followed from the nature of the dismissal and was consistent with Taylor v OCS Group Ltd. The distinction between a review and a rehearing did not itself decide the question.
3. The Tribunal had made no error of law in treating the operational impact of continued absence as a material element in the proportionality balance under section 15 of the Equality Act 2010. The evidence required on that issue depends on the case. By the appeal hearing, there was some evidence that the employee was then fit to return. It was open to the Tribunal to find that the academy should obtain its own occupational-health assessment before confirming dismissal, and that the burden of waiting for that short period had not been established. That conclusion was not perverse.
4. The Tribunal was also entitled, in these circumstances, to find that a dismissal disproportionate under section 15 was unreasonable under section 98(4) of the Employment Rights Act 1996. The relevant considerations substantially overlapped: the duration of absence, prognosis, the reasonableness of waiting, and operational impact. The reasonable-responses approach does not reduce the statutory task to a quasi-Wednesbury or perversity review. A proportionality assessment may respect an employer’s rational and responsible judgment, but the tribunal must strike the ultimate balance.

Davis LJ dissented. He considered that the late medical evidence was wholly unsatisfactory, that the continuing detriment to the school was obvious, and that the appeal panel’s decision was proportionate and within the range of reasonable responses.

• Court of Appeal (Civil Division) Allowed the employee’s appeal by a majority, restored the Employment Tribunal’s conclusions, and directed that the remedy hearing proceed: [2017] EWCA Civ 145.
• Employment Appeal Tribunal Allowed the academy’s appeal from the Employment Tribunal and remitted the unfair-dismissal and section 15 claims for rehearing.
• Employment Tribunal, Manchester Upheld the claims for ordinary unfair dismissal and discrimination arising from disability, while dismissing the other claims relevant to the proceedings.