In the case of O’Brien v Bolton St Catherine’s Academy Ms O'Brien was a teacher who was assaulted by a student. Although she was able to return to work initially she subsequently was signed off with a number of mental health conditions including anxiety and depression. After 17 months' absence Ms O'Brien was dismissed despite the fact that at the medical incapacity hearing she claimed she had been diagnosed with PTSD and that she was to undergo a course of treatment that would allow her to return to work within 3 months. At an appeal hearing (which took place 3 months further down the line) Ms O'Brien provided a fit to work certificate from her doctor, claimed to have undergone treatment for PTSD and stated she was fit to return full time with immediate effect.
The School were sceptical of the evidence that was provided regarding what appeared to be a sudden and complete recovery. Both Ms O'Brien and her GP had previously been unhelpful in providing information to the School about her health and the appeal panel concluded that what was produced at the appeal was an attempt to get her back to work before her condition was fully treated. They took the view that the School had carried the burden of providing a consistent programme of classes for the pupils despite Ms O'Brien's absence for long enough and upheld the original decision to dismiss.
Ms O'Brien was successful with both her unfair dismissal and her disability discrimination claims before the Employment Tribunal. The Tribunal found that the School could have waited a little longer before dismissing, established whether Ms O'Brien was, in fact, going to be able to return in the near future, and establish whether the treatment she had identified was going to work. They also found no satisfactory evidence of her absence having an adverse affect on the running of the School nor why an absence of 20 or 21 months couldn't be tolerated.
On appeal the EAT found the majority of the arguments put by the School to be persuasive and directed that the case be re-heard by a different tribunal. However, the Court of Appeal then upheld Ms O'Brien's further appeal and concluded that although it was a "borderline case" the decision of the original Tribunal should stand. The unsatisfactory nature of the medical evidence provided by Ms O'Brien at both the dismissal and appeal hearings was acknowledged by the Court but it stated "the essential point is that by the time of the appeal hearing there was some evidence, albeit not wholly satisfactory, that she was now fit to return; and in my view it was open to the Tribunal to hold that it was disproportionate/unreasonable for the school to disregard that evidence without at least a further assessment by its own occupational health advisers."This was no doubt an extremely frustrating result for the School. They appeared to be dealing with a senior employee who had been absent for a significant period, who had been uncooperative at times in providing medical evidence and the appeal panel, having considered the new medical evidence produced to them, considered it to be (in the words of the dissenting opinion of Lord Justice Davis in the Court of Appeal) "half baked". However, arguably the further enquiry required to establish whether Ms O'Brien was genuinely going to be able to return within a short period of time was not onerous and would have resulted in only a short further period of employment. As such, this case is a clear warning to employers to ensure they don't let frustration lead them into rushing the final part of a capability procedure. If the employee was indeed able to return then there is the potential for establishing significant compensation.