Constructive unfair dismissal and disability discrimination

Posted on April 27th, 2022

Mrs Davies was employed as a part-time teacher at Riverside Primary School, teaching in the reception class of early years and reception. During December 2017 to January 2018, at the age of 30 years old, she was diagnosed with grade 3 anaplastic astrocytoma (a malignant brain tumour), a condition which is incurable and results in an average life expectancy of eight years. She started a period of sick leave in January 2018 and underwent surgery and chemotherapy.

Occupational health referral

A referral was made to occupational health in October 2018 and advice was sought on Mrs Davies’ fitness to return to work. Advice stated that she was fit to return on a phased return in January 2019, following further medical investigations.

Back to work

Mrs Davies returned to work on 8 January 2019. The headteacher failed to arrange a return to work interview.

Singled out

By April 2019, Mrs Davies had not returned to classroom teaching because the headteacher wished to keep full-time teachers in the classroom and part-time teachers covering PPA. Mrs Davies felt she was being singled out for different treatment. While Mrs Davies had returned to her normal hours, she was having difficulty with her memory and was having to be reminded several times of what she was doing.

Not offered a vacancy

During Easter 2019, a vacancy arose in the nursery due to the retirement of another teacher. Despite the teacher recommending Mrs Davies, the headteacher did not offer the job to her or enquire as to whether she would be interested. Instead, the role was offered to another colleague.

Difficult task

From September 2019, Mrs Davies was moved from nursery to key stage 1 and 2 teaching. Mrs Davies found this difficult because she had not undertaken this work for a period of nine years. She was required to remember the name of 120 pupils. This was a difficult task given her recent brain surgery.

Performance review

Mrs Davies was invited to a performance review meeting on 16 October. She initially declined a referral to occupational health but later changed her mind. The headteacher failed to arrange a referral despite being chased by Mrs Davies.

Ill health retirement

At a meeting on 4 December 2019, the headteacher suggested that Mrs Davies seek ill health retirement which took Mrs Davies by surprise. She confirmed she was not interested but despite this the headteacher sent a link to Mrs Davies with details about ill health retirement.

Criticisms from colleagues

A further meeting took place on the 18 December where the headteacher shared a number of criticisms from other colleagues with regards to Mrs Davies’ professional failings. Mrs Davies felt threatened by this. Further meetings took place in December to discuss Mrs Davies’ capability.

Stress and anxiety

Mrs Davies went off sick in January 2020 with anxiety. An occupational health report dated 24 January 2020 found that the main factor preventing Mrs Davies returning to work was stress and anxiety at the way she felt she had been treated over the past months, with minimal support, little response to requests for assistance or reasonable adjustments and her colleagues being questioned behind her back about performance related issues. The headteacher wrote to Mrs Davies on 11 February 2020 informing her that the best option to overcome her anxiety and stress was to return to work with support as a matter of urgency.


On 18 March 2020, Mrs Davies lodged a formal grievance against the headteacher. In July 2020, the chair of governors wrote to Mrs Davies inviting her to a meeting to discuss the investigation report. She was not provided with five days’ notice for the meeting in accordance with policy and was provided with a 134-page document. On 20 July 2020, the headteacher offered Mrs Davies a position in early years.


By letter dated 28 July 2020, Mrs Davies resigned because she did not consider the offer of a job in early years to be genuine and the requirement to attend a meeting at short notice added to her anxiety.

Employment tribunal

In the case of Mrs R Davies v Herefordshire Council and Riverside Primary School, Mrs Davies brought claims of unfair constructive dismissal, direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment related to disability and victimisation. Her claims succeeded. In reaching a decision, the employment tribunal concluded:

  • Mrs Davies was directly discriminated against because of her disability by not being offered the role that arose in the nursery.
  • Mrs Davies was refused the reasonable adjustment of working in early years because she was disabled.
  • The headteacher raised capability procedures because she perceived Mrs Davies’ performance was related to her disability. She was threatened with the potential of dismissal through her capability and this was connected to the fact that Mrs Davies had made a protected act (had raised concerns about her disability).
  • The requirement for Mrs Davies to work in key stage 1 did place her at a disadvantage because she struggled with her memory.
  • Mrs Davies was subject to a campaign to identify negative capability issues about her. It was disproportionate and not justified.
  • Mrs Davies was subject to discriminatory treatment and as a result she resigned.

A hearing will be arranged to determine remedy.

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