Unfair dismissal and discrimination arising in consequence of a disability: consideration of both tests together is not an error of law

Article

21 March, 2017

O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145

Mrs O'Brien was Head of ICT at Withins School, Bolton and subsequently St Catherine's Academy, Bolton after the School converted into an Academy. Mrs O'Brien was assaulted at the School by a pupil, which although she did not suffer grave physical harm, she began to feel unsafe at the Academy for a number of reasons. One of those reasons was her dissatisfaction at the Academy's removal of a policy of automatic exclusion for violent and/or aggressive pupils.

Mrs O'Brien was dismissed in January 2013 after a lengthy period of sickness absence due to anxiety and depression, and appealed the Academy's decision. The Governors convened a panel in order to hear the appeal. At the hearing, Mrs O'Brien claimed to possess new medical evidence which she alleged suggested she was fit for work immediately.

The Academy did not take into account the evidence and proceeded to dismiss the appeal and Mrs O'Brien issued a claim in the employment Tribunal. The Tribunal ruled the dismissal unfair in the context of ordinary unfair dismissal and ruled that the dismissal amounted to less favourable treatment arising out of her disability under s.15 Equality Act 2010.

The Academy appealed the decision and the EAT upheld the appeal on all except one of the 8 grounds for appeal.

The Court of Appeal then considered the case after Mrs O'Brien appealed the decision of the EAT. The appeal was upheld by majority.

The Court of Appeal agreed with the Employment Tribunal and found that it was disproportionate and/or unreasonable for the Academy, having failed to adduce any evidence in support of its assertions that Mrs O'Brien's absence as Head of IT was disruptive to the Academy and/or pupils' education, not to 'wait a little longer' before taking the decision to dismiss in light of the new medical evidence.

The Court of Appeal also held that the ET had not erred in its considering of the two tests for Unfair Dismissal under the Employment Rights Act 1996 and Discrimination arising from disability in the Equality Act 2010 together; as in the context of long term sickness, considering the two distinct tests in this manner will seldom produce a different result.

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