Two tests

When claiming unfair dismissal and unfavourable treatment for disability discrimination, the Court of Appeal held in O’Brien v Bolton St Catherine’s Academy that although the tests for the two claims were different, both were objective and should therefore rarely (if ever) lead to different outcomes.

Basic facts

Ms O’Brien, who was employed as the Director of Learning ICT, was assaulted by a pupil in March 2011. She was initially diagnosed with anxiety, depression and subsequently with post-traumatic stress disorder (PTSD) and went off sick in December 2011.

After two occupational health assessments which said she was not fit to return, the school held a formal medical incapacity hearing in January 2013. Ms O’Brien told the school at the hearing that she hoped to be able to return to work by the end of April, when she would have finished her treatment for PTSD. However, as there was no guarantee that she would be able to return, she was dismissed with effect from 31 January 2013.

Ms O’Brien appealed against her dismissal and provided a copy of a GP note saying she was fit for work and a further medical letter about treatment. Her appeal was not upheld because the employer considered her return was uncertain and the fit note was an attempt to return to work before she was fit.

She brought claims of unfair dismissal under section 98(4) of the Employment Rights Act 1996 (ERA) and unfavourable treatment arising from disability under section 15 of the Equality Act 2010.

Tribunal and EAT decisions

The tribunal agreed that her dismissal constituted unfavourable treatment because of something arising in consequence of her disability. Although the school had a number of legitimate aims (such as reducing costs), the tribunal held that it had not presented sufficient evidence to demonstrate the adverse impact which her continuing absence was having on the running of the school. It concluded therefore that any reasonable employer would have “waited a little longer”. As the dismissal was discriminatory, it fell outside the band of reasonable responses and was also unfair. 

The EAT allowed the school's appeal on the basis that the tribunal had substituted its own view in terms of how long the Academy should have to wait particularly in “these times of austerity and shortage of resources”. It therefore remitted the case to a differently constituted tribunal for a rehearing. Ms O’Brien appealed.

Decision by Court of Appeal

Allowing the appeal, the Court of Appeal held by a majority that the tribunal had not erred in law. Although the case was “near the borderline” because of the length of time that Ms O’Brien had been absent and the unsatisfactory nature of the evidence about when she might be fit to return, the essential point was that there was some evidence that she was fit to return by the time the appeal was heard.

On that basis, it was open to the tribunal to hold that it was disproportionate or unreasonable for the school to disregard that evidence without at least a further assessment by its own occupational health advisers. The tribunal was not therefore wrong to request more evidence about the school's ability to put up with Ms O’Brien’s absence for a little while longer.

The Court of Appeal also rejected the argument that the tribunal had “erroneously conflated” the tests under section 98(4) ERA and section 15 of the Equality Act. Although the language is different in the two tests, both are objective. As such, the Court “very much” doubted whether the two tests would ever lead to different results.