O'Brien v Bolton St Catherine's Academy, Court of Appeal - Civil Division, March 15, 2017, [2017] EWCA Civ 145

Resolution Date:March 15, 2017
Issuing Organization:Civil Division
Actores:O'Brien v Bolton St Catherine's Academy

Case No: A2/2015/3377

Neutral Citation Number: [2017] EWCA Civ 145


ON APPEAL FROM Employment Appeal Tribunal

HH Judge Serota QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/03/2017






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Ms Elaine Banton (instructed by Berg) for the Appellant

Mr Edward Legard (instructed by RBS and Natwest Mentor Services) for the Respondent

Hearing date: 25 January 2017

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JudgmentLord Justice Underhill :


  1. The Appellant is a teacher. In 2005 she started employment at Withins School in Bolton as Head of Information and Communication Technology. In 2009 Withins became an academy and was re-named Bolton St Catherine's Academy; the Appellant's job title changed to Director of Learning ICT. The academy (to which I will refer as ``the school'') is the Appellant's employer.

  2. On 25 March 2011 the Appellant was assaulted by one of the pupils at the school. The physical consequences of the assault were not, fortunately, very grave and she had only a short period off work in the immediate aftermath. But she was very shaken by the incident. She felt unsafe in parts of the school and her duties were restricted accordingly. She believed that the school authorities were not taking sufficiently seriously the incidence of aggressive behaviour by students; in particular, she was dissatisfied by its refusal to reinstate an earlier policy under which pupils who assaulted staff were automatically excluded. After some further incidents, on 9 December 2011 she went off sick. The initial diagnosis was stress at work. There were subsequently other diagnoses, including anxiety, depression and post-traumatic stress disorder.

  3. Eventually, after the Appellant had been off work for over a year, she was dismissed for medical incapacity with effect from 31 January 2013. The dismissal was upheld on an internal appeal.

  4. The Appellant brought proceedings in the Employment Tribunal. She complained both about her treatment by the school in the period prior to her dismissal and about the dismissal itself. We are not now concerned with the non-dismissal claims. As regards her dismissal, she claimed:

    (a) that it constituted ``ordinary'' unfair dismissal within the terms of section 98 of the Employment Rights Act 1996;

    (b) that it constituted ``automatic'' unfair dismissal, within the terms of sections 100, 103A and/or 104 of the 1996 Act - we are not now concerned with those claims;

    (c) that her illness constituted a disability and that either;

    (i) she was dismissed because of it so as to give rise to direct discrimination within the meaning of section 13 of the Equality Act 2010; or

    (ii) that her dismissal constituted unfavourable treatment arising from that disability which the School could not justify and thus constituted discrimination within the meaning of section 15 of the 2010 Act;

    the discrimination in either case being rendered unlawful by section 39 (2) (c); and

    (d) that the dismissal was wrongful because the school had dismissed her summarily and paid ``money in lieu of notice'' in the absence of any contractual right to do so.

    There was also a claim for arrears of holiday pay.

  5. Those claims were heard by an Employment Tribunal sitting in Manchester, chaired by Employment Judge Porter, over four days in September 2014. It was common ground at the hearing that the Appellant was at the material times suffering from a disability.

  6. By a judgment sent to the parties on 6 November 2014 the Tribunal dismissed the claims in relation to the Appellant's pre-dismissal treatments, including the claim for arrears of holiday pay. It also dismissed the claims for automatic unfair dismissal and direct discrimination. However, it upheld her other claims in relation to the dismissal, i.e. ordinary unfair dismissal, the claim under section 15 of the 2010 Act and (though this was of marginal significance) wrongful dismissal. It directed a remedy hearing. I should say at this stage that the judgment is a clear and thorough piece of work.

  7. The school appealed to the Employment Appeal Tribunal (except with regard to the finding of wrongful dismissal). The Appellant did not cross-appeal in respect of the claims on which she had lost.

  8. The appeal was heard by HHJ Serota QC sitting alone on 3 June 2015. By a judgment handed down on 18 September he allowed the school's appeal and remitted the case to a differently constituted tribunal for a re-hearing of the claims which were the subject of the appeal.

  9. Before us the Appellant has been represented by Ms Elaine Banton and the Respondent by Mr Edward Legard, both of whom also appeared before both tribunals below.


  10. The claim for unfair dismissal is governed by the very familiar provisions of section 98 of the Employment Rights Act 1996, which I need not set out in full. In summary, a dismissal will be unfair unless it is for one of the admissible reasons specified in sub-sections (1): those reasons include ``capability'', which in turn covers health (sub-section (3) (a)). If it is proved to be for one of those reasons, then, by sub-section (4):

    ``... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)--

    (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

    (b) shall be determined in accordance with equity and the substantial merits of the case.''

  11. It is trite unfair dismissal law that in assessing the reasonableness of the employer's conduct an employment tribunal for the purpose of sub-section (4) must not substitute its own opinion about whether the employee should have been dismissed but must recognise that there will be (sometimes) a range of reasonable responses and that a dismissal should not be held to be unfair unless it falls outside that range. But it has also been emphasised that that is not equivalent to a test of perversity: Post Office v Foley [2000] EWCA Civ 3030, [2001] ICR 1283, per Mummery LJ at p. 1291-2, and, most recently, Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470, [2013] ICR 525, per Elias LJ at paras. 18-19 (pp. 533-4).

  12. There is a good deal of case-law about the dismissal of employees with long-term illness but most of the reported cases simply illustrate the point made by Phillips J in one of the first such cases in the EAT, Spencer v Paragon Wallpapers Ltd [1977] ICR 301, that (p. 307 B-D):

    ``Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer? Every case will be different, depending upon the circumstances.''

    He noted that the relevant circumstances include ``the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do'' (p. 306G).

  13. As for the discrimination claim, section 15 (1) of the 2010 Act reads as follows:

    ``A person (A) discriminates against a disabled person (B) if--

    (a) A treats B unfavourably because of something arising in consequence of B's disability, and

    (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.''

    Discrimination against an employee by dismissal is rendered unlawful by section 39 (2) (c) of the Act. Counsel used the familiar shorthand of ``justification'' for the test embodied under element (b) in the definition, and I will do the same. Again, there is of course a plethora of case-law about the correct approach to justification in discrimination cases but I need not refer to any of it here. The effect of section 6 of the 2010 Act, read with paragraph 1 of Schedule 1 is (broadly) that an illness which has lasted, or is likely to last, twelve months will constitute a disability; but we were not referred to any cases addressing the issue in the particular context of dismissals for long-term sickness.


  14. Much of the Tribunal's judgment is concerned with the Appellant's complaints about her pre-dismissal treatment. In this appeal, however, we are only concerned with its findings and reasoning about the dismissal.


  15. The sequence of events leading up to the Appellant's dismissal is fully recounted at paras. 51-85 of the Reasons. For present purposes it can be sufficiently summarised as follows:

    (1) When the Appellant went off sick on 9 December 2011 she submitted a sick note from her doctor referring to stress at work. The school arranged for her to undergo a course of CBT.

    (2) On 14 March 2012 there was a meeting between Mrs Wilkinson, the school's Human Resources Director, the Appellant and her trade union representative, Mrs Simpkins. It was agreed at the meeting that the Appellant should be referred to an occupational health physician; the school used the occupational health service offered by AXA.

    (3) On 19 April the AXA doctor reported. He described the case as difficult and said that considerable work would be required to resolve the Appellant's anxieties and overcome her perception that she was inadequately supported by the school; that if that proved possible she would be able to return to work; but if not, not.

    (4) On 21 August AXA reported again. It noted that although the Appellant was continuing to receive both psychological treatment and medication from her GP her condition had not improved and the GP had suggested a...

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