A teacher who lost his job after falling asleep in class and accruing more than 140 days of absence in less than two years was unfairly dismissed following failings in how his employer handled the capability assessment process.
Mr Smith, who had anxiety and depression, was dismissed from his role as a ‘floating teacher’ at Wetherby School in Notting Hill, London, in July 2022 as he was considered not well enough to perform his duties.
However, an employment tribunal found that his employer, Alpha Plus Group – which runs several private schools across London – had rushed the process and “unduly accelerated towards dismissal without having followed structured procedures”.
Between 2006 and 2020, Smith had a good attendance record and performed well in his role. However, he started to become unwell with mental health issues in January 2020 following a breakdown in his personal relationship.
A psychiatrist diagnosed him with an adjustment disorder with depressive features, which met the threshold of disability under the Equality Act 2010.
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After some time with his family in Australia in 2020, where he delivered some online learning, he returned to work and was referred to occupational health. The report recommended that he attend regular one-to-one meetings with his manager to monitor his wellbeing, and that his employer consider adjusting the absence trigger points for him and use a wellness action plan produced by the charity Mind. However, none of these recommendations were taken forward initially.
In March 2021, Smith told a colleague that he had had suicidal thoughts. The colleague was worried and rang a member of the school’s senior leadership team, who then informed the head teacher, deputy head, and the head of wellbeing. Smith began receiving messages of support from these individuals, including some telling him to stay away from work until he felt better. He was shocked to discover the colleague had passed on this sensitive information about him.
An OH report in May 2021 scored his anxiety as ‘severe’. He was signed off as unfit for work.
Return to work
He returned to work on 1 September 2021, but did not notify the school that he would be returning. This meant he was not given a timetable because they wanted to create one in conjunction with him. It had upset him that he had not been timetabled for any lessons so he did not return to work the following day. The deputy head, Miss Dingle, phoned him to ask him to meet later that day to discuss his concerns.
Throughout 2021 and up to his point of dismissal in 2022, there were numerous occasions where Smith felt too unwell to work but did not inform the organisation before 7:30am, as required under its absence policy. The organisation later allowed him to report absence up to 8:00am.
He often had problems sleeping and the tablets he took would result in him sleeping through his alarm. He was also witnessed sleeping at his desk on several occasions.
Parents had also complained about Smith shouting at pupils for no reason, and staff had raised concerns about him speaking ill of managers in common places.
The organisation said it had put several reasonable adjustments in place, including a flexible timetable with no planning or marking, teaching year groups the claimant was most interested in, and regular meetings with his manager.
He was referred to a third OH assessment in which further adjustments were suggested, including adjusting his absence triggers and a phased return to work.
He began a phased return in January 2022, which went smoothly until he was witnessed falling asleep in class in February. The following day he was signed off as sick with Covid. When he returned to work he denied falling asleep in the classroom.
An investigation meeting took place in March 2022 to discuss his failure to report absences on time and falling asleep in class. He was not given any notice about what the meeting was about and was not told he could be accompanied by a colleague.
Following the meeting, further concerns were raised by colleagues, including Smith being too harsh on pupils and shouting at them for not looking at him when he was talking to them.
Capability meeting
He was invited to a formal capability meeting in May 2022. This meeting was postponed several times as the claimant was too unwell to attend and had been signed off work by his GP.
On 1 June, Alpha Plus Group’s head of HR, Mr Brereton, emailed Smith to say that the meeting would be rescheduled to 1 July and informed him that they would not postpone the meeting again, so if he could not attend he would need to provide written submissions.
At 11:39pm on 30 June 2022, Smith emailed Brereton to request a postponement as the person he had asked to accompany him could no longer attend. He also had a fit note confirming he was unable to attend.
Had the capability policy been followed, even at the informal stage, clear targets and review points would have been agreed.” – Employment Judge Parris
Brereton decided to go ahead with the meeting as he felt there was no indication of when the claimant would be well enough to attend. Smith was given until 4:30pm that day to provide a written submission, but he did not do so.
The hearing went ahead without him and it was decided that Smith would be dismissed on grounds of ill-health. The dismissal letter noted that he had been absent for 89 days in 2021 and 52 days so far in 2022, had repeatedly failed to follow the absence reporting procedures, had fallen asleep at work, and that he had an “unpredictable temperament” and overly-strict classroom management.
Smith’s appeal against the decision was rejected in August 2022. He was also denied an opportunity to bring a friend to the appeal hearing.
Disability discrimination
The employment tribunal found that Alpha Plus Group had discriminated against Smith on disability grounds because it “jumped straight to dismissal without following any of the earlier stages of any of [its] policies, whether capability, absence or disciplinary”.
Employment Judge Parris said: “Had the capability policy been followed, even at the informal stage, clear targets and review points would have been agreed.
“At each formal stage, he would have had the right to be accompanied to a formal meeting. He would have been given a warning with specific review dates, and he would have worked together with his manager to create a performance improvement plan. None of this happened.”
The tribunal rejected a claim for failure to make reasonable adjustments relating to the absence reporting procedure, as it felt the extension to 8:00am was reasonable given that pupils arrive at the school at 8:30am. It also rejected a disability discrimination claim relating to this.
However, it found that the organisation had failed to make a reasonable adjustment when Brereton refused to postpone the capability hearing again.
The judgment says: “Though strictly speaking the GP did not write another note saying the claimant could not attend the meeting on 1 July, he did provide a general fit note saying the claimant was not fit for work up to 11 July 2022 and it would have been obvious that continued to mean unfit for the meeting.
“This did put the claimant at a substantial disadvantage because due to his disability he was not fit to attend the hearing at that point and certainly not without a companion. Putting his arguments would not have had the same persuasive effect even if he had been able to do so within the limited timescale. The end result was that he was dismissed without being heard.”
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It also found that it had failed to make a reasonable adjustment by not allowing the claimant to bring a friend to the appeal hearing.
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