Bolton St Catherine's Academy V Ms G O'Brien (Unfair Dismissal : Reasonableness of dismissal), Court of Appeal - United Kingdom Employment Appeal Tribunal, September 18, 2015, [2015] UKEAT 0051_15_1809

Resolution Date:September 18, 2015
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Bolton St Catherine's Academy V Ms G O'Brien (Unfair Dismissal : Reasonableness of dismissal)
 
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Copyright 2015

Appeal No. UKEAT/0051/15/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 3 June 2015

Judgment handed down on 18 September 2015

Before

HIS HONOUR JUDGE SEROTA QC

(SITTING ALONE)

BOLTON ST CATHERINE'S ACADEMY APPELLANT

MS G O'BRIEN RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0051/15/LA

APPEARANCES

UKEAT/0051/15/LA

SUMMARY

UNFAIR DISMISSAL - Reasonableness of dismissal

DISABILITY DISCRIMINATION - Direct disability discrimination

  1. The Respondent is a publicly funded independent school with approximately 1,200 pupils aged eight to 18 and is successor to a school administered by the local authority. The academy is what might be regarded as an ``urban'' school. Its catchment area includes deprived areas, and the make up of the school is reflected in the fact that over 50% of its pupils have entitlement to free school meals. Prior to achieving academy status in 2009, it had been subject to special measures on several occasions and suffered a succession of poor academic results. It was well recognised that many pupils displayed aggressive and challenging behaviours. The school has adopted an ethos of trying to work with students who had displayed aggressive behaviour rather than permanently excluding them, as had been its previous ethos.

  2. The Claimant was a long serving teacher having commenced employment with the school, prior to its achieving academy status, in 2000. She was a well-regarded member of staff with a clean disciplinary record and no history of unacceptable sickness absence.

  3. At the material time the Claimant was Director of Learning ICT and responsible for leadership and development in the ICT Department with a teaching role.

  4. In March 2011 the Claimant was assaulted by a pupil and suffered injury and an acute stress reaction. She returned to work for a short period but suffered a relapse after seeing the pupil on the school premises. She again returned to work but in December 2011 the stress reaction again manifested itself and she ceased work and never returned. From this time she was disabled within the meaning of the Equality Act 2010.

  5. While absent from work the Claimant's teaching duties were covered by a part-time teacher being paid to work full-time. Her other duties were covered by colleagues.

  6. Medical reports made available to the Respondent did not give any clear prognosis as to when she might be able to return to work. She was also uncooperative (as was her GP) in providing information, including information as to her medical condition, to the Respondent that would enable it to consider whether a return to work was likely or whether there were any adjustments which could be made to facilitate her recovery.

  7. In those circumstances in January 2013 the Respondent determined to activate its sickness management policy and called a medical incapacity hearing before a panel of Governors for 28 January 2013 at which it was made clear to the Claimant that her continued employment was to be considered.

  8. At the medical incapacity hearing there was no clear evidence as to when the Claimant might return to work although she was hopeful of being able to return to work by the end of April 2013. However her therapist had said she would be in a better position to advise after seven sessions to be completed in approximately three months, but was reluctant to confirm that the Claimant would be able to return after those sessions.

  9. The panel determined to terminate the Claimant's employment for three reasons:

    (a) the length of the absence (12 months), which was continuing with no fixed date of her return;

    (b) there was no sign of improvement in the Claimant's condition to enable her to return to the school in April 2013;

    (c) concerns of the likelihood of a similar or other incident re-occurring and this resulting in a further period of absence.

  10. The Claimant exercised her right of appeal which was by way of review, not rehearing. The appeal was dismissed.

  11. The Employment Tribunal was satisfied that neither at the medical incapacity hearing nor the appeal had any consideration been given to the impact of the Claimant's absence on the ``business'', and that there had been no weighing up of the effects of terminating the Claimant's employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further three months.

  12. The Employment Tribunal considered that the Claimant had suffered discrimination arising from her disability by reason of her dismissal contrary to section 15 of the Equality Act 2010 because the Respondent had failed to show that the dismissal was a proportionate means of achieving, what was accepted to be, the legitimate aim (efficient running of the school, reduction of cost and providing a good standard of teaching). The Respondent had failed to adduce evidence of the adverse impact on the school's business of the long-term absence of the Claimant, before the panels at the medical incapacity hearing and appeal, or before the Employment Tribunal. Additionally there was a less discriminatory means of achieving the legitimate purpose, namely to ``wait a little longer'' to establish whether the Claimant would be able to return to work in the near future. This decision should have been taken by the appeal panel. The decision to dismiss was also flawed because the Respondent had concluded that a further incident might lead to a relapse without any medical evidence. A less discriminatory response would have been to postpone the decision to dismiss pending up to date medical evidence on the point.

  13. The Employment Tribunal also found that the Claimant had been unfairly dismissed because any reasonable employer would have conducted a balancing exercise as required under section 15 of the Equality Act 2010.

  14. The Claimant's other claims were dismissed.

  15. The Employment Appeal Tribunal held that the Respondent was not obliged to call evidence in order to establish that the dismissal was a proportionate response; it could rely on any material available before the Employment Tribunal. Further the Employment Tribunal had failed to use its experience and common sense as an industrial jury by taking into account that it was obvious that long-term absence of a senior employee with teaching leadership and administrative roles from the school was bound to have had an adverse impact on its business, including the additional expense of paying for cover of her teaching duties. There was substantial material before the Employment Tribunal which went towards the question of justification to which the Employment Tribunal failed to take into account.

  16. In relation to unfair dismissal, the Employment Appeal Tribunal was concerned that the Employment Tribunal, despite its warning, had substituted its view as to what a reasonable employer would have done rather than considering whether the Respondent had acted within the reasonable range of responses. It was also considered that the Employment Tribunal had placed inappropriate emphasis on what took place at the appeal hearing rather than the medical incapacity hearing when the decision to dismiss was taken when applying the test for justification.

  17. The Employment Tribunal had failed to grapple with the question of how long the Respondent should have been required to wait. The issue was not whether the Respondent could accommodate the Claimant's prolonged absence but whether it should be required to do so.

  18. There was force in the submission that the Employment Tribunal had conflated the question of proportionality under section 15 of the Equality Act 2010 with reasonableness under section 98(4) of the Employment Rights Act 1996.

  19. Appeal allowed and case remitted for hearing before a fresh Employment Tribunal.

    UKEAT/0051/15/LA

    -59-

    HIS HONOUR JUDGE SEROTA QC

    Introduction

  20. This is an appeal by the Respondent from the decision of the Employment Tribunal at Manchester, sent to the parties on 6 November 2014. The Employment Tribunal was presided over by Employment Judge Porter, who sat with Mr M C Smith and Mrs C A Titherington.

  21. The Employment Tribunal upheld the Claimant's claim that she had been unfairly dismissed and that she had suffered unlawful discrimination within the meaning of sections 15 and 39(2) of the Equality Act 2010. The Claimant had been treated unfavourably because of something arising in consequence of her disability (long-term sickness absence) and the Respondent had failed to show that the treatment was a proportionate means of achieving a legitimate aim. It was also found that there had been a breach of contract on the part of the Respondent by making a payment in lieu of notice (``PILON'') at the time of dismissal of the Claimant when there was no contractual right to do so.

  22. The Employment Tribunal rejected claims that the Claimant had been subjected to a detriment within the meaning of section 47B of the Employment Rights Act 1996 and that her dismissal was unfair within the meaning of sections 100, 103A and 104 of the Employment Rights Act.

  23. The Employment Tribunal also rejected a claim that prior to her dismissal the Claimant had been treated unfavourably because of something arising in consequence of her disability under section 15 Equality Act 2010. A claim for accrued holiday pay was dismissed. The Employment Tribunal directed that there should be a Remedy Hearing.

  24. The appeal is principally directed at the finding that the dismissal of the Claimant was not a proportionate means of achieving a legitimate aim and at the findings of discrimination under section 15 Equality Act and of unfair dismissal.

  25. The appeal was referred to a Full Hearing by HHJ Shanks on 5 March 2015.

    Factual Background

  26. I take this largely from the Decision of the Employment Tribunal.

  27. It is not easy to summarise the factual background as in my opinion the claim was...

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