Academy required to pay £24,290 in unfair dismissal and disability discrimination claim
In Mr A Chucha v Calthorpe Teaching Academy, the employment tribunal (ET) considered whether a school had unfairly dismissed a teaching assistant for failing to consider properly ill-health retirement before dismissal on the grounds of capability. Mr Chucha also brought a claim of disability discrimination.
Background
Calthorpe Teaching Academy is a special school for pupils with diverse complex and severe learning difficulties. Mr Chucha was employed as a teaching assistant from June 2005 until he was dismissed in January 2018 due to his prolonged ill health.
Mr Chucha has angina, ischaemic heart disease and type 2 diabetes, as well as some gastro-intestinal problems.
OH – unlikely to return to work
From October 2016, Mr Chucha started a period of sick leave. Before this though, there was no history of any issues regarding his attendance or conduct. A number of discussions and meetings took place between the academy and Mr Chucha. He returned to work, but his health did not improve. In June 2017, Mr Chucha was referred to occupational health. The opinion of the occupational health nurse at that time was that Mr Chucha was unlikely to return to work unless his symptoms drastically improved.
OH – not able to work for the foreseeable future
A formal attendance meeting took place in July 2017, where Mr Chucha was supported by his trade union representative. In August, Mr Chucha’s GP concluded that he was unfit to return to work and should stay off for a further two months. In September 2017, he was referred to occupational health again. A specialist occupational health doctor reviewed Mr Chucha and concluded that Mr Chucha would not be able to carry on as a teaching assistant for the foreseeable future.
Application for ill health retirement
In November 2017, a decision meeting was convened. Following the meeting, a letter was sent to Mr Chucha from Mr Chapman. He wrote that, in view of the circumstances and the occupational health report, he had concluded that Mr Chucha’s employment would have to be terminated. However, he said that he would delay any final decision pending the application for ill-health retirement under the rules of the LGPS. It was agreed that the matter would be referred back to the occupational health doctor.
OH – unlikely to work before state pension age
The relevant form was sent to the occupational health doctor, who certified that, in his opinion, Mr Chucha was unable to continue in his current job and was unlikely to be capable of taking any other paid work in any capacity before the state pension age. This report was sent to Mr Chapman, but not copied to Mr Chucha. In fact, Mr Chucha never saw the report until disclosure took place at the ET.
Application rejected for ill health retirement
Mr Chapman stated that, having read the OH report, he took advice. The advice he received from two places was that he should reject the application for ill-health retirement, because in doing so he would save the academy from having to pay the pension strain. He was advised to rely on the fact that Mr Chucha could appeal the decision and that the appeal would go to the LGPS. Therefore, if the LGPS overturned the decision, then they would have to pick up the financial strain.
Employment terminated by reason of incapacity
Mr Chapman subsequently wrote to Mr Chucha to say that he was going to terminate employment by reason of incapability. In the same letter, he informed Mr Chucha that he had rejected the application for ill-health retirement because, having reviewed the advice from the occupational doctor, he was not satisfied that Mr Chucha was permanently unable to do his job until normal pension age.
Appeals
Mr Chucha appealed both the decision to dismiss him and the decision to reject his application for ill-health retirement. The academy’s HR manager, Miss Jackson, sent a letter to state that the two issues would be dealt with separately. An appeal against dismissal hearing was convened and a separate meeting to discuss the ill-health retirement was supposed to be arranged, but never took place. Mr Chucha did not attend the appeal hearing.
Two letters were then drafted by Miss Jackson. The first stated that Mr Chapman would be carrying out the review of the decision to decline Mr Chucha’s application for ill-health retirement and that Mr Chucha could attend to make representations if he wished to do so. However, this letter was not signed and was not on academy letterhead. Mr Chucha stated that he had not received this letter. The ET found on the balance of probabilities that Mr Chucha did not receive this letter, because it was not sent. The second letter stated that Mr Chapman had reviewed the decision not to grant ill-health retirement and declined the application again.
Employment tribunal (ET) findings – unfair dismissal
The ET stated that, in order to act reasonably in an ill-health capability case, an employer is expected to fully investigate the nature of an employee’s impairment and obtain credible and up-to-date medical evidence about the prognosis.
In coming to its decision, the ET considered a number of employment appeal tribunal decisions, which dealt with the inter-play between ill-health/capability dismissals and ill-health retirement.
The ET concluded that the reason for the dismissal was capability, but that it was not reasonable to dismiss an employee in circumstances where he was contractually entitled to benefit from ill health retirement if he qualified.
Eligibility for ill health retirement
The ET found that Mr Chucha’s application had not been considered in accordance with the rules of the Pension Scheme but rather against the criterion of affordability. Therefore, the decision to dismiss was taken in breach of the academy’s own procedure, which said that fairness required the academy to consider an employee’s eligibility for ill health retirement before consideration is given to dismissing him for lack of capability. The ET concluded that there was no genuine consideration to whether, or not, Mr Chucha was eligible for ill health retirement. The headteacher had hoped to put the decision onto the LGPS via the appeal process.
When considering the fairness of the dismissal, one of the factors the ET considered was whether alternatives to dismissal had been reasonably considered. An alternative to dismissal is ill health retirement.
Unfair appeal process
The ET also considered that the academy did not provide a fair appeal process. The appeal panel was told to deal with the appeal as a pure capability case and not to look at ill health retirement. The review of the headteacher’s decision should not have been made by the headteacher, as he was the original decision maker.
Employment tribunal (ET) findings – discrimination arising out of disability
The ET found that Mr Chucha’s long term sickness arose because of his disability and that he was dismissed because of that long-term sickness absence.
The ET accepted that it was a legitimate aim to provide the children with consistency on the teaching assistants it provided, and that the implementation of the absentee policy went towards achieving that general aim.
Eligibility for ill health retirement
However, the ET stated that the academy was not clear that dismissal was a proportionate means of achieving that legitimate aim when ill health retirement might have been a way of achieving that aim without a dismissal. The ET stated that it was aware of the financial constraints facing many educational establishments. However, the academy had not presented any evidence regarding the cost of granting ill health retirement and Mr Chapman did not indicate that this had ever been calculated.
Awards
Accordingly, the claim of unfair dismissal and discrimination arising out of disability succeeded. At the Judgment on Remedy, Mr Chucha was awarded the sum of £5,022 as a basic award for unfair dismissal, a further sum of £14,000 for injury to feelings for disability discrimination, plus interest of £5,268.
Summary and advice
Employers need to ensure that a fair and transparent process has been followed and that a decision to dismiss on the grounds of ill health capability must be proportionate. All options should be explored and, if ill health retirement is supported by the relevant medical practitioner, it should not be disregarded on the basis of cost.
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