UK: Dismissal for long-term sickness - new medical evidence at internal appeal

Employers should ensure they investigate any evidence that a long-term sick employee may soon be able to return to work before deciding to dismiss, even if that evidence is questionable and produced only at a late stage.

The Court of Appeal in O'Brien v Bolton St Catherine's Academy has upheld a tribunal decision that it was both unfair dismissal and disability discrimination to confirm the dismissal of a long-term sick employee at an internal appeal hearing, given that she produced new evidence at the appeal that she was now fit to return to work imminently. Although the evidence had been produced late in the day and was simply a cursory note from her GP, the tribunal was entitled to conclude that it was unreasonable for the employer to continue with the dismissal without at least obtaining a further up to date assessment from its own occupational health advisers.

The impact of long-term absence on the employer is a significant factor in deciding whether dismissal is proportionate, and the Court considered that if the impact is obviously very severe, a general statement to that effect may be sufficient; if not, more detailed evidence should be produced.