In O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145 the Court of Appeal considered the issue of long term sickness absence from work.
The facts of the case and the outcome itself are unexceptional. The Claimant commenced employment in 2005 as a teacher. In March 2011 she was assaulted by a pupil which resulted in a short period off work. However, the incident left her shaken and she believed that the employer had not taken the assault sufficiently seriously. In December 2011, she commenced a period of long term sickness. The initial diagnosis was stress at work. Subsequent diagnoses indicated anxiety, depression and post-traumatic stress disorder. Having been off work for over a year, the Claimant was dismissed with effect from 31st January 2013. The Tribunal held that the Claimant had been unfairly dismissed and discriminated against as provided for by s.15 Equality Act 2010.
The outcome of the appeal itself turned on a narrow point of fact. The Court of Appeal held that there was not an error of law in the first instance decision because by the time of her internal appeal against dismissal there was some evidence, albeit not wholly satisfactory that the Claimant was fit to return to work. It was therefore disproportionate/unreasonable to dismiss.
So far, so good. However, some elements of the Judgment, not necessarily central to the reasoning in the case appear to challenge some orthodox thinking and seem to require some thought. In particular, the Court of Appeal expresses a view on the relevant test for unfair dismissal under s.98(4) Employment Rights Act 1996 and the test for justification in s.15 Equality Act 2010.
At para 53 of the Judgment Underhill LJ appears to draw little practical distinction between the test under s.98(4) of the Employment Rights Act and the test for justification under s.15 Equality Act 2010. The relevant ground of appeal was that the Tribunal “erroneously conflated the unfair dismissal and section 15 Equality Act jurisdictions”. It was said that the Tribunal had found a breach of s.15 and that it therefore followed that the dismissal was unfair.
The paragraph includes the following:
“But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for unfair discrimination law. Fortunately, I see no reason why that should be so.”
Underhill LJ continued with his reasoning, identifying that the proportionality test required a substantial degree of respect to the original decision maker and that the range of reasonable responses test should not be reduce the role of the Tribunal to quasi-wednesbury review interfering in only limited circumstances.
This has the potential to cause difficulty in that I would (humbly) suggest that this is different to what happens at the coalface presently. I would summarise the present position as follows:
a. Faced with the range of reasonable responses test, it isusually difficult for a non-disabled employee on long term sick to succeed in their claim for unfair dismissal. Those who do succeed do so on the basis of the employer ignoring the medical evidence or a self-evidently wrong procedural defect.
b. A disabled employee gains the additional protection of the Equality Act. An employee with the additional protection of the Equality Act should be in a stronger position than an employee without the protection of the Act.
c. A disabled employee who succeeds in their s.15 Equality Act claim also succeeds in their unfair dismissal claim. This isn’t as a matter of course, but itwould take something highly unusual for one to not follow the other.
The following points also bear thinking about:
1. There is a superficial attractiveness in the name of consistency in seeking to draw an equivalence between s.98(4) and s.15. However, the two statutes have an entirely different purpose with a significant body of case law existing as to how the Tribunal should approach its task in respect of each test. The Equality Act is designed to protect disabled employees as a separate and different class to non-disabled employees.
2. It can reasonably be said that the majority of employees on long term sickness absence are likely to fall within the purposive definition of disability contained within s.6 Equality Act. In that sense the number of employees theoretically affected by the Judgment should be minimal. However, the risk is that the bar as to what constitutes and unfair dismissal or a failed justification test under s.15 has moved for all employees. It may be that nothing has changed and that no particular weight is placed on this Judgment. However, if the Judgment does gain traction, the proof of the pudding will be whether the bar for unfair dismissal has been raised or the justification bar has been lowered.
3. At para 55 Underhill LJ disagrees with a section of the EAT Judgment which stated that under s.15 the test is objective and that it is inappropriate to import the range of reasonable responses considerations relevant to unfair dismissal. In disagreeing, Underhill LJ states that “The test under section 98(4) of the 1996 Act involves is objective, no less than the test under section 15 of the 2010.” I am unable to reconcile this reasoning with one of the leading cases in respect of objective justification. In Hardy & Hansons PLC v Lax  IRLR 726 Pill LJ (para 32) rejected the submission that the Tribunal when considering objective justification need only consider whether the decision was within the range of reasonable responses. Hardy is regularly cited by parties at first instance and on appeal emphasising the distinction between the two tests.
4. A footnote in the Judgment notes that s.98(4) has a neutral burden whereas in a discrimination claim s.136 (the reversal of the burden of proof provisions) applies. The footnote says that it will be a rare case of this kind that turns on the burden of proof. However, it is not acknowledged that in respect of justification, it is the burden of the employer to prove that dismissal was a proportionate means of achieving a legitimate aim.
I suspect that what has happened in the present case is that the submission has been made that the Tribunal at first instance treated the finding of s.15 discrimination as automatically leading to a finding of unfair dismissal. The simple answer to such a submission would be that whilst the Tribunal should not deal in automatic liability, it was self-evident on the facts that one must follow the other. The start of para 53 of the Judgment begins to make that point. However, the additional reasoning that follows it has the potential to cause a degree of confusion. Whether the confusion helps employers, employees or makes no change remains to be seen.
I express no concluded view, not least because a Judgment of Underhill LJ requires necessary respect. However, I can foresee problems ahead if parties and subsequently Tribunal interpret the Judgment as lowering the justification bar. More so than any other area of employment law, the law in respect of disability discrimination ebbs and flows from one interpretation to the other. For example, the understanding of who is a disabled person has altered significantly from when the concept was first introduced in legislation as has the consistent widening and contraction of the law of reasonable adjustments – c.f. where we are now following Griffiths v Secretary of State Work and Pensions  IRLR 216.
I suspect that we are a long way from achieving certainty in respect of the law regarding disability discrimination.
The above is for academic purposes only and it does not constitute legal advice. If you require advice, please contact me via my Chambers email. firstname.lastname@example.org