By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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Long-term sick leave can be a headache for employers, but it is absolutely vital that workers are given every opportunity to get better and return to work. In one case that proved the point, a teacher who was off work for over a year after she was assaulted by a pupil has won the right to compensation following her dismissal.
Although her physical injuries were not serious, the woman – who was head of IT at a large state school – was left badly shaken by the attack. She felt unsafe in parts of the school and believed that her employer was not taking aggressive behaviour by students seriously enough. She was particularly unhappy about a refusal to reinstate an earlier policy to automatically exclude pupils who assaulted staff.
Following further incidents, she went on sick leave and was later diagnosed with anxiety, depression and post-traumatic stress disorder. She was off work for more than a year before she was dismissed on the basis that she was incapable of returning to work. That decision was later upheld by an internal appeal panel.
The school accepted that she was disabled for the purposes of the Equality Act 2010. An Employment Tribunal upheld her claim that she had been treated unfavourably because of something arising in consequence of her disability and also ruled that her dismissal was unfair on the ground that it was discriminatory.
The woman had presented the appeal panel with a doctor’s note stating that she was now fit to return to work. She said that she had recently completed a course of therapeutic treatment and felt that she would now be able to cope with any future incidents. In those circumstances, the ET found that the school should have waited a little longer in order to seek clarification of her medical condition before deciding whether or not to dismiss her.
That decision was later overturned by the Employment Appeal Tribunal (EAT) and a re-hearing of the case directed. The EAT noted that the woman had a leadership role within the school and that arranging cover during her long absence had serious resource and managerial implications for the school during a period of austerity. The appeal panel had been sympathetic towards her but had justifiably concluded that enough was enough.
In upholding the woman’s appeal against the EAT’s findings, the Court of Appeal found, by a majority, that the ET had made no error of law and reinstated its findings. The case was finely balanced but the ET was entitled to conclude on the evidence that the dismissal was premature. The amount of the woman’s compensation remains to be assessed and the Court expressed the hope that a settlement might be reached, obviating the need for further proceedings.
Employers who find themselves in this situation are advised to keep a full record of the impact of the employee’s continued absence for use as evidence in support of any future decision to end the employment relationship.