When can you dismiss an employee for long term sickness absence?

Answer: when you have carried out a thorough investigation and there is little or no prospect of the employee returning to work in the near future.

The recent case of O’Brien v Bolton St Catherine’s Academy provides a useful reminder of the procedural complexities surrounding the dismissal of an employee on long term sickness absence.

Mrs O’Brien had been absent from work on sick leave for some 18 month when her employment was terminated.

Throughout her absence, her employer had arranged meetings with Mrs O’Brien, sought occupational health reports and liaised her GP. On the basis that she was unlikely to return to work she was dismissed. Mrs O’Brien appealed this decision producing a ‘Fit Note’ from her GP and a letter from her psychologist outlining an expected return to work in the near future. Her employer rejected her appeal and the new information, concluding that her return to work still remained uncertain.

The Court of Appeal held that Mrs O’Brien’s dismissal was both unfair and discriminatory and that, in light on the new information, it should have waited a ‘little longer’ (although didn’t give guidance on how much longer).

It is important to remember that, when dealing with sickness dismissals, if new information is presented (however late in the day or ‘seemingly convenient’) it should always be given due consideration.

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