Dismissal unfair where evidence on appeal of ‘fit for work’

In cases of long-term sickness absence there does come a time where an employer is entitled to some finality due to the adverse impact such absence is having on their business. Normally before deciding that dismissal is justified an employer will have obtained medical evidence supporting their decision.

If between making the decision to dismiss the employee and the appeal hearing there is a change in circumstances, specifically an employee provides evidence that they are ‘fit for work’, the employer will need to take the change/new evidence into account before upholding or rejecting the decision to dismiss.

To ignore such evidence is likely to result in the dismissal being found to be unfair.

O’Brien v Bolton St Catherine’s Academy

O’Brien (“the Claimant”) was employed by the Respondent. She was absent from her role for 14 months with a stress-related illness brought on by an assault from a school pupil. Her employer held a capability hearing at which there was no clear medical evidence of the Claimant’s prognosis or any indication of when she might return to work. As a result, the Respondent dismissed her.

The Claimant appealed this decision and an appeal meeting was held a few months later. During the intervening period the Claimant attended psychiatric sessions and her GP declared her fit for work. Despite this evidence being presented at appeal, the dismissal was upheld. The Claimant brought claims for disability discrimination and unfair dismissal.

The employment tribunal upheld the claim for unfair dismissal and found that the dismissal constituted discrimination arising from disability contrary to section 15 of the Equality Act 2010. The finding was overturned by the Employment Appeal Tribunal. A subsequent appeal was made to the Court of Appeal.

The Court of Appeal reinstated the original tribunal’s findings. It held that it had been unreasonable of the employer to disregard medical evidence that the employee was fit to return to work at an internal appeal hearing.


This case reinforces that in cases of long-term sickness absence, whether a dismissal is fair will involve ascertaining the up-to-date medical position.

For more information on managing absence and disciplinary matters please contact the Devonshires Employment Team.

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