A teacher had been awarded £61,000 in a disability discrimination and unfair dismissal claim after her employer failed to make reasonable adjustments for symptoms of menopause and anxiety.
Mrs Shearer refused to transfer from the Clydesdale Support Base, a special needs school in Carluke, where she had been teaching since 2015, to Kear Secondary School, because she was anxious the move would exacerbate her menopause symptoms and contradicted advice in two occupational health reports.
The Glasgow employment tribunal found that South Lanarkshire Council could have transferred another teacher from a pool of around 150 if it had been willing.
Shearer qualified as a teacher in 1987 and began work for Strathclyde Regional Council, later South Lanarkshire Council, in 1991 as a children’s rights worker. In 2010 she was redeployed into teaching at her own request.
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On 17 June 2022, head teacher Neil Govan, informed Shearer of his decision to move her to Kear Secondary School from August because she was needed as an English teacher there. Shearer said she would think about it over the weekend.
At that time Shearer was prescribed medication for high blood pressure, anxiety, low mood and menopausal symptoms. The prospect of moving to Kear School made her extremely anxious, the tribunal heard.
She believed that there were “high levels of violence and injuries to teaching staff at that school, that management were ineffective and authoritarian, and that there was a culture of blaming staff for being assaulted”.
Shearer felt that it was inevitable that she would be assaulted. She was concerned her high blood pressure would worsen, and that her anxiety and low mood could become difficult to manage. She emailed Govan outlining her reasoned objections to the move. Govan replied without engaging with the detail of her objections, saying he thought her skills were best utilised at Kear School.
She again tried to negotiate with Govan to return to her current place of work, pending an OH referral, or to other roles in the council’s provision of additional support needs.
HR confirmed the claimant would have to move to Kear School and Govan reiterated that stance. Her previous role was covered by a supply teacher – who also taught English.
If dismissal were ever to have become an appropriate and reasonably necessary means of achieving the aims, then it would only be proportionate if the respondent had first carried out a reasonable search for alternative employment. It did not do so” – judgment
Shearer commenced sickness absence on 16 August, which ultimately led to her dismissal a year later on capability grounds.
The tribunal found that it would have been reasonable for the council to allow Shearer to continue or resume working at the Clydesdale Support Base.
The judgment in Shearer v South Lanarkshire Council said: “The claimant’s aggravated symptoms and sickness absence were inextricably linked to the instruction that she should move to work at Kear Secondary School. That link was well-established by evidence.
“Not only was it the claimant’s own position, which we find to be credible and which we accept, but the same link was made by the occupational health evidence in the respondent’s possession.
“The overwhelming likelihood was that the claimant’s absence would end if she were allowed to work at any other suitable location in any other suitable role.”
It said the issue was a question of “deployment of existing resources, either among the Kear group of schools and bases, or more widely across the respondent’s secondary schools”.
“On the balance of probabilities, we find that an alternative teacher to cover the need for an English teacher at Kear Secondary School could reasonably have been found, and that it was not reasonably necessary for that teacher to be the claimant,” said the panel.
It said South Lanarkshire failed to demonstrate that Shearer’s dismissal was a proportionate means of achieving the undoubtedly legitimate aims.
“Dismissal was not proportionate to those aims because other, less detrimental measures would have served to achieve those aims no less effectively,” said the panel. “It would have been proportionate simply to return the claimant to Clydesdale and to cover the need at Kear Secondary School in another way.
“If dismissal were ever to have become an appropriate and reasonably necessary means of achieving the aims, then it would only be proportionate if the respondent had first carried out a reasonable search for alternative employment. It did not do so.”
Shearer’s claims for discrimination arising from disability and unfair dismissal both succeeded.
She was awarded £18,600 for unfair dismissal, £15,000 for financial loss, £10,300 for future financial loss, and £15,000 for injury to feelings, plus interest, totalling £61,075.
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