School successfully defends claim of disability discrimination and failure to make reasonable adjustments
The case below is an example of where the school has successfully defended itself from claims of discrimination arising from disability, failure to make reasonable adjustments and constructive dismissal.
Dr Driver v Sherrardswood School
Dr Driver was employed as a newly qualified computer science teacher. Her disabilities included autism and Irlen’s Syndrome (a processing disorder which affects the brain’s ability to process visual information).
Reasonable adjustments
Before starting employment with the school in September 2020, Dr Driver made the school fully aware of her disabilities and the fact that she was likely to require reasonable adjustments. Dr Driver also submitted an application to Access to Work in the hope they would be able to put assistance in place before she started work. She was further provided with a main point of contact to discuss any adjustments required.
Extension to probation period
Dr Driver’s probation period was extended by three months due to performance issues. Dr Driver argued these were related to the school’s failure to implement the adjustments she had requested. In November 2020, a meeting was held with Dr Driver to discuss the performance concerns. The criticism came as a surprise to Dr Driver, and she went off sick the following day. Sickness absence procedures were started in December 2020.
Resignation
Dr Driver eventually resigned in February 2021, because of what she claimed was repeated communication from the school. The ‘final straw’ was argued as being the sending of a case management letter in February to her direct, rather than her representative. The letter which prompted the resignation referred to a potential return to school in March 2021.
Tribunal claims
Dr Driver brought claims of discrimination arising from disability, failure to make reasonable adjustments and constructive dismissal within the employment tribunal (ET). Details of some of the claims are considered below.
Occupational health
Dr Driver complained that the school had failed to refer her to occupational health before starting employment and failed to consult the HR department about the support available for making reasonable adjustments. The ET found that the referral to occupational health before starting employment may have been appropriate if the school was considering whether Dr Driver would be able to carry out the role.
Unreasonable adjustment
Dr Driver also requested up to three separate rooms to be solely allocated to her as a reasonable adjustment, one of which that was suitable to use as a recovery space for sensory overload. The ET found the school did not have capacity to offer dedicated rooms, especially during the COVID period which was taking place at that time. Despite this, the school did make a conscientious and genuine attempt to ensure that Dr Driver had her own room as a base for teaching. Further, it was not practical or desirable for the school to prevent other staff entering rooms, particularly considering safeguarding protocols and should Dr Driver herself need assistance. The adjustments were therefore not reasonable. The ET further commented that the school had made extensive efforts to mitigate the effect of Dr Driver’s sensory overload. However, given the school is a busy environment, it would not be possible to remove all triggers.
Substantial disadvantage
Dr Driver also argued that the requirement to attend routine medical appointments outside of working hours or during holidays was a provision, criterion or practice which placed her at a substantial disadvantage. The ET found that there was no absolute prohibition, and discretion was given to requests inside work time. She further argued the school had failed to carry out a risk assessment until November 2020 and had failed to provide coloured backgrounds for documents such as reports, as well as requiring Dr Driver to attend absence management meetings. The ET found the school had provided an iPad and other aids to assist with visual processing. Further Dr Driver had not made the school aware of her difficulties in this regard. The requirement for Dr Driver to attend medical appointments was found to be a legitimate aim, given the school was required to plan lessons in Dr Driver’s absence.
All Dr Driver’s claims were dismissed.
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 appointment and recruitment section of our CEFMi website contains model policies, related model letters and forms, guidance 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.