Long-term Absence Dismissals

Stuart Swan
21st Mar 2017

The Court of Appeal in the case of O’Brien v Bolton St Catherine’s Academy (http://www.bailii.org/ew/cases/EWCA/Civ/2017/145.html) has provided interesting commentary in relation to the legal test for discrimination arising from disability and the legal test for unfair dismissal, in the context of dismissal for long term sickness absence.

Employment law time off work

In the leading judgement, Lord Justice Underhill commented: “I accept that the language in which the two tests is expressed is different… 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 … 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 the purpose of discrimination law. Fortunately I see no reason why that should be so.”


Whilst this decision does not change the law in any way, it should provide comfort to employers when they are considering dismissing a disabled employee who has been on long-term sickness absence.


If you would like to discuss the implications of this decision further, or require support on any employment law matter, please do not hesitate to contact the team on 0141 331 5150.

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