In a dismissal for long-term sickness absence, is the test for discrimination arising from disability different from the test for unfair dismissal?
Not really, held the Court of Appeal in O'Brien v Bolton St Catherine's Academy.
At the time of her dismissal, the Claimant had been absent from work for more than a year and there was no certainty as to when she would return. As the Court of Appeal acknowledged, the Claimant's case that her dismissal could not be justified at that stage was very weak, and any finding that such a dismissal was unfair would require considerable scrutiny.
But, at her appeal hearing, the Claimant produced evidence that she was fit to return to work imminently and, under these unusual circumstances, the failure to take this new evidence into account rendered the dismissal unfair. This finding was upheld by the Court of Appeal, noting that it was "near the borderline".
The Court of Appeal rejected a submission that the employment tribunal had conflated the tests for unfair dismissal and discrimination arising from disability. Despite differences in the statutory wording and the burden of proof, they should rarely lead to different results in the context of long-term sickness. A failure to consider them separately will not be an error of law.
Thanks to James Medhurst of Fieldfisher for preparing this case summary.
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