In O’Brien v Bolton School Academy, O’Brien (O) was assaulted by a pupil. After some further incidents in the school, O went off sick suffering from stress at work anxiety, depression and post-traumatic stress disorder. After a 15-month absence, she was dismissed for incapacity. At an appeal hearing, O provided a fit to return to work note, but this was considered an attempt to resume her duties before her condition was fully treated. An ET upheld O’s claim under S.15 of the Equality Act 2010, that the dismissal constituted unfavourable treatment because of something arising in consequence of her disability, namely her long-term sickness absence. The ET also upheld O’s unfair dismissal claim.

Disability: The school had a legitimate aim, i.e. the efficient running of the school, reducing costs and providing a good standard of teaching. However, dismissal was not proportionate when balancing the discriminatory effect of O’s treatment against the school’s needs. No satisfactory evidence had been produced about the adverse impact which O’s continuing absence was having on the school and therefore it was reasonable to wait “a little longer” to see if she would be able to return to work.

Dismissal: While the ‘reasonableness’ test for dismissal under S.98(4) of the Employment Rights Act 1996 is not the same as for the S.15 EA 2010 claim, any reasonable employer would have conducted the appropriate balancing exercise required of it under S.15 before deciding to dismiss. The dismissal therefore fell outside the band of reasonable responses because it was a discriminatory act and was substantively unfair.

The Court of Appeal, by a 2-1 majority, upheld the ET’s decision.

On the S.15 claim, the question of the impact of O’s continuing absence on the school was thrown into sharp focus. Therefore, the ET were not perverse in wanting more evidence about the school’s ability to put up with O’s absence for a short further period. As for the dismissal, the language for the ‘test’ in S.15 EA 2010 is different to the test in S.98(4) EA 1996, but “it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled”. While this was a borderline case, there had been no error of law. it was open to the ET to hold that it was disproportionate/unreasonable for the school to disregard evidence of a possibility of a return to work without at least a further assessment by its own occupational health advisers.

The case emphasises the difficulty employers can face when dealing with long-term disability related absence dismissals. Shedding new light on the approach, the CA commented that the law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law.

This was a ‘borderline case’, however, and the dissenting judge took a different view. Davis LJ believed the limited materials O provided relating to her medical condition were entirely unsatisfactory, that requiring more evidence as to the ongoing detriment to the school was unrealistic and the dismissal was proportionate and reasonable.

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