If you have been continuously employed for two years or more, you will have unfair dismissal rights. (Depending upon the nature of your illness, you may also be deemed to be disabled under The Equality Act 2010 and have rights under that Act.)

The recent Court of Appeal case of O’Brien v Bolton St Catherine’s Academy made some important points about when a dismissal for long-term sickness will be fair.

In this case, Ms O’Brien was the head of a department in a school. She was attacked by a pupil but did not suffer serious injuries and returned to work; however, she felt unsafe and had over a year off work for stress.

The employer enquired as to when Ms O’Brien may be returning to work and whether any adaptations were required. This information was not forthcoming and Ms O’Brien simply referred the employer back to her GP who did not feel able to confirm a return date.

The employer held a formal medical incapacity hearing under its internal procedures and dismissed Ms O’Brien. At that hearing, there was nothing to suggest that she would be returning in the near future. Ms O’Brien appealed the decision to dismiss her and there was then an internal appeal hearing which upheld her dismissal.

The principle matter for the Court of Appeal in respect of Ms O’Brien’s unfair dismissal claim was the consideration by the appeal panel of new medical evidence. At the appeal hearing, Ms O’Brien had produced a GP fit note and a letter from a psychologist that recommended courses of treatment. The appeal panel had concluded that the sudden production of this note was suspicious and was concerned about the inconsistent nature of the evidence.

The Court of Appeal held that the dismissal was unfair and provided valuable guidance about the fairness of dismissals in long-term sickness cases, as follows:

• If an employer decides to dismiss an employee following an absence of over 12 months, with no certainty about a return date, it will not necessarily be unfair. There will come a point where the employer is entitled to some finality but when that point comes will vary.

• The severity of the impact of the employee’s absence on the employer’s business is important. An Employment Tribunal will expect to see some evidence of disruption to the business although in some cases, the impact will be so severe that a general statement from the employer will be sufficient.

• If an employee is able to produce updated medical evidence, the decision to dismiss must be fair taking into account all the information that is available, even if this is only produced at the time of the appeal hearing.

In O’Brien the Court of Appeal held that the employer should have sought additional medical evidence before making a decision about the appeal; the dismissal was therefore unfair.

If you are on long-term sickness absence and you wish to discuss your situation, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email at Kerry.Hudson@bttj.com

The above is not intended to provide advice.

The post Are you Facing Dismissal for Long-Term Sickness Absence? appeared first on Brindley Twist Tafft & James.

For many employers getting to grips with what a fit note actually does is far from easy, and on face value they may think that such documents are in fact a joke; whilst some such notes simply say that the employee is unable to work, and are straight forward and easy to understand, others appear to dictate details of what an employee can and cannot do whilst he or she is at work, or the patterns which they may work.

Under the old scheme, the “Sick note” simply meant that an employee could not return to work, but the newer “fit note” appears to bind employers and appears confusing and unclear.

In order to try to clarify the relevance and use of “Fit Notes”, we aim to put some minds at ease and to dispel some myths. In doing so, the DWP’s 2013 guidelines are very useful and user friendly, and a recommended read to any Employer or manager who is unsure of how to deal with a fit note.

First, a “Fit Note” arises from Medical Practitioner Guidelines, they are not statutory, and they are not binding on the Employer. Therefore simply because the GP or medical practitioner says that Joe Bloggs should return on reduced hours does not mean that the Employer must comply with this. Equally, just because the GP does not provide an option does not mean that it is unviable.

Second, the start point in considering a Fit Note is that the employee is unable to attend work as they are not fit to do so. However, they may be able to attend work where certain adjustments can be made. If those adjustments cannot be made then they operate like the old “sick note” and the employee should remain away from the work place. In this circumstance the employee is not being suspended by the Employer on medical grounds, and therefore full pay is only required where there is a contractual provision, otherwise only SSP will be paid.

Third, the existence of a Fit Note does not mean that an employee cannot come back to work before it has expired, or that a new note is needed. An employee can return prior to its expiry. However, caution must be exercised in such circumstances; risk assessments should be undertaken and full consideration given to the matter. Failure to do so could leave the employee exposed to further injury and the workforce and the Employer’s business exposed to unnecessary risks, and the employer exposed to claims by the employee and investigations in to health and safety practices etc.

However, an employer cannot compel the employee to return before the expiry of the Fit Note, unless they can show that they have a genuine and reasonable belief that employee is not unwell. Whilst Fit notes can and should normally be used as evidence that the employee is unwell and unable to attend work, they can be challenged, and as stated above are not binding on the Employer, nevertheless it should be the exception and not the rule that such are challenged.

The Fit Note is therefore a starting point. It is designed to encourage communication between employer and employee and to facilitate a return to work at the earliest stage, where agreement can be reached between the parties. It is not big brother dictating to industry what it should do next or how it conducts its business, nor is it forcing an Employer’s hand into taking employees back early and risk infecting the rest of the workforce. Equally, the medical practitioner should be acting in the best interest of their patient, i.e. the employee, and therefore if there are concerns as to their ability to work then they will simply tick the box that says the employee is not fit to work, and the note works exactly the same as the old sick note.

Managing absence can often be a difficult and daunting task. However, if you have any questions please do contact me and I’d be happy to help.

The post An Employee Walks into Work with a Fit Note…! appeared first on Brindley Twist Tafft & James.