Employment Law Update : Long Term Sick Absence

Laura Morrison Employment

The recent case of O’Brien in the Court of Appeal in March 2017 has clarified that “there comes a time when an employer is entitled to some finality” in the decision to continue or terminate employment in the case of long term sickness.

This case is interesting, as the background is that the claimant suffered an assault at work which gave rise to an acute stress reaction. The claimant felt unsafe at work, which was partially attributed to the school deciding not to reinstate a previous policy to exclude students who assaulted staff. This compounded the stress disorder leading to several short periods of sick leave, which then culminated in a long term stress absence, and a diagnosis of anxiety, depression and PTSD.

Could the school, as the employer, acted differently at this point?

A little over a year passed, and the school requested a return to work date in January 2013 and enquired about reasonable adjustments, as required by law.

Ms O’Brien declined the meeting and referred the school back to her GP as she felt the meeting may upset her, whereby the GP was unable at that stage to confirm a return to work date – this led to the school convening a formal medical incapacity hearing and dismissing the employee on the grounds of capability.

This was subject to internal appeal and Ms O’Brien presented a fit note at that point evidencing that her GP felt she could return to work immediately. However, the dismissal was upheld, as the employer believed the medical evidence to be inconsistent.

The original tribunal found in favour of Ms O’Brien and the ruling was she had been discriminated against due to the disability, being mental illness arising as a result of the assault. It would have been reasonable for the school to extend time for further medical evidence to be gathered.
This ruling was overturned by the Employment Appeal Tribunal, which was then appealed in the Court of Appeal, who reinstated the decision of the original tribunal.

Lord Underhill’s ruling directs employers to consider the following points:
• When absence exceeds 12 months, dismissal when there is no certainty as to return is not necessarily unfair.
• The business impact of the ongoing absence must be a “significant element” in deciding if dismissal is justified.
• In the event of an appeal hearing, the decision must be based on the current evidence at the time of the appeal.

So, what can we learn from this case?

Lesson 1 : Offer early support.

Have a procedure for Critical Incidents. Naturally this should extend to criminal acts such as assault and remember, employers have a duty of care to protect the health, safety and wellbeing of employees at work. The employer could have enhanced this with Critical Incident Debriefing and access to a behavioural therapist, the employer may have been able to mitigate the harm suffered by the employee.

Lesson 2 : Monitor and observe patterns of attendance to provide early intervention and support.

Employees can be suffering silently with stress and related disorders for a long time before they begin to buckle – often the first indicator is a short sick absence, followed by another in quick succession.

Ensuring that sensible return-to-work procedures are in place and used, following any absence, opens up the possibility of a compassionate conversation between manager and employee, to look at what work-related or external stressors may be affecting performance.

Lesson 3 : Both employer and employee need to keep the lines of communication open.

A situation such as this, with lengthy litigation and appeals serves no-one. It is clear that better communication between the parties about options and expectations could have avoided the scenario.

Sometimes HR guidance can be too rigid and overly formal in sticking to a timetable for capability or performance procedures, when for all parties, a delayed or phased return to work might be in the best interests long-term.

Equally, an anxious employee can often fall into the trap of making their own health and stress worse by not engaging in dialogue, taking steps to returning on an adjusted schedule and/or revised duties to begin the long process of rebuilding confidence.

More regular communication between the employee, employer and the GP may have been beneficial in this scenario. Active case management by an independent party may have been helpful in facilitating communication, as well as the employer taking the necessary steps to ensure the employee was supported by a behavioural health specialist following the initial assault.


Let’s be very clear – after a major incident or trauma, or even a life event such as bereavement, crime, divorce, illness or injury the employee does not “go back to normal” – both the employee and the employer need to adjust to a “new normal” and shape together what that looks like.

Cut and dried HR policies and handbooks can drive employers to make decisions that serve neither themselves or the employee. On the alternative, employers who work with employees can often retain talent and I have seen excellent examples of this, particularly when employers are more mindful to extend compassion in the case of bereavement or long term physical diseases such as cancer. There is a compelling case for mental health issues to be treated with that same compassion.

In this particular case, considerable time, legal costs and energy have been expended by both parties when an alternative approach may have been more positive in the long run for the employee and staff and students of the school.

The best outcome and the one consistent with current employment law and equality legislation, and current thinking in psychology is that meaningful work in the recovery period from a mental disorder or PTSD can help long term mental health prospects.

The experience in recovery is important in preventing relapse and long term harms to the individual.

Conversely, a potentially unsupportive or misguided approach by an employer in the return-to-work stage compounded by moving to formal capability and performance hearings in the absence of current medical evidence can re-traumatise the employee, worsen long term prospects of effective employment and have an adverse effect on long term health prognosis.

An open, non-judgemental approach, and the support of both HR and non-HR colleagues and mentors can be invaluable in creating the right conditions for a returning employee to thrive.

Add to this that a positive experience can be affirming for all concerned and improve the employees’ productivity, loyalty and enhance the brand and culture, as the employer will be perceived positively by the employee, colleague and others in contact with the supported individual.

Let’s learn by examples such as this. It’s #TimeToChange for mental health in the workplace.

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