Balancing teacher conduct and disability rights

In the case of Rogers v Diocese of Southwell and Nottingham Multi-Academy Trust, the employment tribunal (ET) considered claims of unfair dismissal and disability discrimination. The case highlights the issues in balancing employment legislation, disability rights, teachers’ standards and the statutory safeguarding framework.

Background

Ms Rogers was employed as a primary school teacher by the trust from September 2019 until her summary dismissal in March 2022. She was dismissed for breaching the teachers’ standards and safeguarding provisions and subsequently claimed that her dismissal was both unfair and unfavourable treatment because of something arising as a result of her post-traumatic stress syndrome (PTSD).

Facts of the case

In November 2020, Ms Rogers had suffered an ectopic pregnancy. As a consequence of her experiences of the pregnancy, emergency surgery and circumstances while in hospital under Covid restrictions, she was subsequently diagnosed with PTSD.

In or around April/May 2021, Ms Rogers delivered a lesson on loss to her class as part of the PSHE curriculum, which covered the loss of a pet, death and family difficulties. She was provided with the lesson plan a few days in advance, which included a note for teachers stating that if a teacher was unable to deliver the lessons at this time because of their own bereavement, they should seek support to either opt out, or team teach. Ms Rogers did not seek any advice or support before the lesson. During the lesson she became upset and told the class that she had a baby growing in the wrong part of her body and that it was not there anymore.

Following some concerns about her capability, Ms Rogers was put on a performance improvement support plan. However, Ms Rogers said that she was concerned about her current mental health and so the school postponed the performance support plan process until an occupational health referral was undertaken.

Ms Rogers had become very close to a pupil (pupil X) in her class and on the last day of the summer term pupil X became very upset. Over the summer holidays, pupil X contacted Ms Rogers via Dojo, the school’s online reward system. Contact between the pupil and Ms Rogers continued over the summer, with the knowledge of pupil X’s mum. Within one exchange, Ms Rogers told pupil X’s mum that ‘Bless her, I just love her’ and she referred to pupil X as ‘sweetheart’.

The message exchange only came to light on 6 September 2021 at the start of the new term, and Ms Rogers was suspended, in accordance with the disciplinary policy.

The investigation

The trust’s designated safeguarding lead was appointed to investigate the allegation. At around the same time, a parent of a child Z raised concerns relating to her sharing detailed and distressing information with her daughter about her ectopic pregnancy and that she had asked the children to keep secrets.

At the disciplinary hearing, the issue of PTSD was raised by Ms Roger’s union representative with regards to the minutes of the investigation meeting. However, at no point was it raised as a reason or contributory factor in Ms Roger’s behaviour.

The panel took the decision to summarily dismiss Ms Rogers. Ms Rogers appealed, alleging that the trust had failed to make reasonable adjustments in relation to her PTSD. However, in the letter, no causal link was made between her PTSD and the allegations against her.

During the deliberations, the panel considered the impact of PTSD on Ms Roger’s behaviour but concluded that the decision to dismiss should stand.

Employment tribunal conclusions

Discrimination arising from disability

At a preliminary hearing held in April 2023, the judge found that Ms Rogers was suffering from a disability because of PTSD at all material times.

At the final ET hearing, Ms Rogers claimed that the unfavourable treatment suffered was her disability and the ‘something arising’ was hypervigilance/hyperarousal. She stated that it was this symptom of her PTSD which caused her to engage in the messaging with pupil X. Regarding the sharing of her pregnancy details, she said that it was re-experiencing that which caused her to share those details. The ET considered the occupational health reports and the GP letter, neither of which make any reference to hypervigilance/hyperarousal.

The ET concluded that Ms Rogers had not established that hypervigilance/hyperarousal was a symptom of her PTSD at the relevant time. The ET went on to state that, even if she had established it was a symptom, she had failed to establish a causal link between hypervigilance/hyperarousal and the messaging with pupil X. Finally, the ET concluded that, even if Ms Rogers had established a case that she was dismissed because of the hypervigilance/hyperarousal, it was satisfied that the trust’s action in dismissing her was a proportionate means of achieving a legitimate aim, that is the upholding of the teachers’ standards and the safeguarding of children.

Unfair dismissal

The ET concluded that the decision to dismiss was within the range of reasonable responses and that the trust had undertaken a reasonable investigation. Although Ms Roger’s actions were well-intentioned, the trust reasonably took the view that they were a breach of the statutory and school frameworks in place relating to safeguarding and the maintaining of proper boundaries between pupils and teachers and amounted to gross misconduct.

Summary and advice

This case demonstrates the importance of following procedures correctly. Schools are advised to ensure that all staff have access to adequate support for mental health issues and that there is clarity in how these issues are handled in relation to professional responsibilities.

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