Not following structured procedures

In the case of Smith v Alpha Plus Group Limited, Mr Smith was employed as a teacher for 12 years. His last two appraisals had been glowing. In 2020, he became unwell due to mental health because of a breakdown in his personal relationship. He was later diagnosed as having an adjustment disorder with depressive features.

Occupational health

Mr Smith spent some time in Australia during the pandemic and, on his return, he was referred to occupational health (OH). In March 2021, he disclosed suicidal thoughts to a colleague, and he was asked to work from home until further notice. Further advice was sought from OH, and he remained off work until July 2021.

Reasonable adjustments

A second OH report recommended various reasonable adjustments to support Mr Smith’s return to work. This included a phased return, a review of workload, reduced working hours, 1-1 sessions with his manager, using the MIND WAP tool and adjusting absence trigger points.

Return to work

Mr Smith returned to work at the start of term in September 2021, although he did not notify the school of his return. He was an hour late due to his anxiety and a return-to-work meeting did not take place. He did not turn up for work the next day because he was upset there had been no timetable or allocated desk space for him. He was later provided with a timetable that did not build in a phased return to work. Adjustments were made to his workload, but no thought had been given to using the MIND WAP tool as recommended by OH. Further, regular 1-1 meetings did not take place, although his manager checked in with Mr Smith every day or every other day. Mr Smith went off sick again for two weeks at the end of September 2021.

A third referral to OH was made in November 2021. By this stage, Mr Smith had various issues with the school including: lack of communication and enquiry about his welfare while he was off sick; no communication, no back to work meeting, no support or adjustments when he returned; not being given a timetable; feeling his role as head of RE had been undermined and feeling he was not wanted back at work. A further phased return to work was recommended, along with other adjustments.

Investigation

Mr Smith’s return to work went well until February 2022, when he was reported as having fallen asleep in class. He went off sick again in March 2022. He was called to an investigation meeting on 15 March with no prior notice and no right to be accompanied. Allegations included, falling asleep on duty, failing to follow the school’s absence reporting processes and capability to perform in the teaching role.

Formal capability

Mr Smith was invited to a formal capability meeting in May 2022. He responded saying he was unfit to attend due to ‘work related stress and mental health’. The meeting was rearranged twice. The day prior to the re scheduled meeting, Mr Smith emailed to confirm his representative was not available and that he had a fit note confirming he was unable to attend.

Ill-health capability

The meeting went ahead in his absence, and he was dismissed on the grounds of ill-health capability. Mr Smith appealed and asked to bring a friend for moral support. It was repeated that he could attend with a trade union representative or colleague. He attended without representation and his appeal was not upheld.

Tribunal claims

Mr Smith brought claims of unfair dismissal, discrimination arising from disability, indirect discrimination, and failure to make reasonable adjustments.

The employment tribunal (ET) felt that the school had ‘unduly accelerated towards dismissal without having followed structured procedures’ which had not given Mr Smith an opportunity to understand the seriousness of matters. The failure to postpone the capability hearing at least one more time was held to be a failure to make a reasonable adjustment. Not allowing Mr Smith to be accompanied by a friend at the appeal, given his disability, was also a failure to make a reasonable adjustment.

Considering the above, the ET did not find the school had followed a fair procedure and the dismissal was unfair. The ET also found that dismissal was not a proportionate means of achieving a legitimate aim and Mr Smith’s claim for discrimination arising from his disability of anxiety and depression also succeeded.

Advice to schools

In the case above there had been no prior formal meetings under the sickness absence or capability procedures before dismissal. This had given Mr Smith no opportunity to answer questions in a formal setting with representation. While postponement cannot last indefinitely, an employee should be given the opportunity to attend where dismissal is an option. Further, had the school followed the capability policy, clear targets and review points could have been agreed and a performance improvement plan been created. The lack of clarity had caused Mr Smith further anxiety. When dealing with mental health cases, it is important that an employee has structure and is supported throughout.

Need support with your HR?

Our support means you can focus on education, while we take care of your organisation’s HR needs.

We have a wide range of education HR consultancy services to choose from, offering complete flexibility for your school. Our occupational health service provides access to a team of occupational health specialists to help you manage your school’s employee health, wellbeing and sickness. Get in touch for a free consultation about how we can help you.

The capability section of our CEFMi website contains model policies, information and answers to FAQs. 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.