The winter period can be one of the most challenging periods for staff absenteeism, with employees adversely affected by a combination of winter bugs, flu, hangovers and the post-holiday blues.

According to statistics, this period peaks on “National Sickie Day”, the first Monday of February, which is apparently the worst day of the year for calling in sick.

With this date now on the horizon, it seems like a good time to consider some interesting sickness-related employment law cases and the lessons to be learned from them.


O’Brien v Bolton St Catherine’s Academy

The claimant was dismissed due to long-term incapacity, having been unable to work due to anxiety, depression and Post-Traumatic Stress Disorder after being assaulted by a student. She took the academy at which she worked to tribunal and eventually won on appeal.

Despite acknowledging that it had been a borderline case, the Tribunal cited the following determining factors:

  • The employer had disregarded new medical evidence from the claimant.
  • The employer had failed to provide evidence of how the claimant’s absence was adversely affecting its operation.


Although the Court of Appeal made it very clear that employers are not expected to wait forever for an employee to recover from illness and dismissal is sometimes a valid step when a return to work is not imminent, its decision in this case illustrates the benefit of keeping a written record / supporting evidence of any workplace disruption caused by long-term sickness absence when attempting to substantiate a related dismissal. It also serves as a reminder to employers of the need to review any and all medical evidence provided by an employee, including anything new which may come to light during the dismissal and / or appeal process.


Urso v Department for Work & Pensions

The claimant was dismissed on incapacity grounds after a few months of absence. As with the previous case, the cause of the claimant’s absence was Post- Traumatic Stress Disorder and she subsequently brought a claim for disability discrimination and harassment. Although the tribunal rejected the claim, it was upheld by the EAT on appeal. In its decision, the EAT referred to the need for the DWP to focus on the symptoms and effects of the claimant’s condition. It determined that she had exhibited symptoms which went well beyond mere stress and anxiety and concluded that her absence and failure to engage were a consequence of them. It also determined that the ET had erred in rejecting the harassment claim, which was based around the act of dismissal itself.


When dealing with long term sickness absence and the potential dismissals which arise from it, employers must always take reasonable steps to understand the condition at hand, the nature of symptoms and their effects on the employee’s behavior. Mrs Urso’s dismissal was based on two points; (1) that she was incapable of returning to her post; and (2) that she had failed to engage with the DWP’s absence management procedure. Due to a lack of consideration of the extent to which her condition was effecting both her ability to work and engage with due process, the dismissal was eventually found to be manifestly unfair.


New Year’s Resolutions:

With the rate of sickness absence gathering momentum around this time of year, employers can become frustrated and end up acting in haste. Adopting a more circumspect approach in the form of a review of absence patterns, the applicable procedures and any pending long-term sickness cases will reduce the risk of legal exposure and is likely to be more effective in the long run.

Also, employers must be careful not to follow procedures with preordained outcomes as this increases the likelihood of a failure to consider all the facts. It should be standard practice to thoroughly investigate an employee’s medical condition, appreciate that it can evolve over time and consider it in the context of his or her employment


For further reference material on how to handle sickness absence, why not browse the free resources section of our website. There you’ll find infographics on persistent short-term absence and long-term ill-health. Additionally, if you have a pending issue in this regard that you require further advice on, you can call us for some initial advice without charge or obligation.