Former teacher receives £131,945 for unfair dismissal and disability discrimination
A recent case highlights how not giving proper consideration to an employee’s medical circumstances before dismissing can have large financial implications for an employer. The sum of £131,945 was awarded to a teacher following claims of unfair dismissal, discrimination arising because of her disability and a failure to make reasonable adjustments.
More to come
In this case of Miss A Davin v The Governing Body of District CE Primary School and St Helen’s Borough Council, the sum is set to increase with pension losses. At the time of writing, these are still to be determined at a remedy hearing.
School argued it had no choice
Miss Davin was a teacher who, following significant periods of absence due to a bowel condition, was dismissed by the school on medical grounds. The school argued that it had no choice but to dismiss and sought to argue that Miss Davin did not have a reasonable prospect of returning to work, having failed to provide a possible return to work date.
Medical capability hearing
After a series of welfare meetings, the final medical capability hearing took place on 20 May 2019. Miss Davin, however, was too unwell to attend the hearing, even waiting for an ambulance on the morning of the hearing, and sought a postponement.
The headteacher would not agree to a postponement and advised Miss Davin that the school would proceed because it was too late to postpone. Miss Davin’s sister was a solicitor and attempted to represent Miss Davin in her absence, but her attendance was not agreed to because the school’s policy only provided for a colleague or trade union representative to attend on an employee’s behalf.
The school’s policy provided that in exceptional cases:
‘There may be occasions… where the nature of the circumstances is such that strict control measures with absolute adherence to this procedure are inappropriate. Such cases should be dealt with fairly and sympathetically at all times welfare and support provided, together with professional medical or other assistance where necessary. Decisions in these cases will be taken after seeking advice from the human resources section.’
It was accepted that the medical capability panel did not consider this provision at the time of the request to postpone or to allow the sister to represent her.
More time for medical investigations
Miss Davin had made written submissions and these were provided to the panel on the date of the hearing. She asked that the school give a little more time for medical investigations and treatment because she was hopeful, with a diagnosis and treatment, that she would be able to return to work. Despite this, the school dismissed Miss Davin for medical incapacity reasons.
The employment tribunal (ET) found that the school had not carried out appropriate investigation at the time of the medical incapacity hearing to be sure of the most up-to-date medical position. Aside from that, the ET considered it was outside the band of reasonable responses not to postpone the meeting on 20 May 2019.
The ET also considered that it was unreasonable of the school not to wait a further month for further medical opinion, or to take proper account of the medical advice that was available at the time which suggested a return to work was likely to be possible, albeit a diagnosis was still pending.
All Miss Davin’s claims succeeded and, as she suffered financial loss and injury to feeling because of her treatment, the sums awarded were significant.
Summary and advice
Employers need to tread carefully when dealing with complicated absence issues. In this case, the employee’s condition was still under investigation and it was not reasonable to make a decision as to whether the employee was incapable of returning to work at the time of dismissal because no diagnosis or prognosis was available.
The ET considered the school was intent on pursuing an exit agenda, rather than giving real consideration to what could be done to support the employee back to work.
How CEFM can help
Our support means you can focus on education, while we take care of your organisation’s HR needs.
The sickness section of our CEFMi website contains model policies and related forms and letters for schools. Get a free trial of CEFMi – a comprehensive resource for school managers containing over 7,000 pages of text, including over 170 policies written specifically for schools.