Employment Case Law Digest - Education 2017

A summary of some of the more interesting and important employment cases concerning schools over the last 12 months.

These cases highlight important legal principles and offer useful guidance to school employers.

City of York v Grosset highlights the risk of dismissal where misconduct could be caused by an underlying disability.  Hartley v King Edward VI College considers the calculation of deductions for teacher strike days.  Agoreyo v London Borough of Lambeth is a very important case for school employers, highlighting the risk of breach of contract when suspending a teacher without proper consideration of the reasons for suspension. Herry v Dudley Metropolitan Council considers the sometimes difficult line between absence because of a mental impairment qualifying as disability and a refusal to come back to work because of work-related issues. O'Brien v Bolton St Catherine's Academy highlights the importance of heeding medical information and advice in the case of long term sickness absence and the need for schools to evidence operational and financial reasons to dismiss.

Wrigleys regularly publishes articles on case law and other points of interest for those in the education sector. For example, our recent articles on segregation of boys and girls in a mixed sex school and issues with caretakers' accommodation.

Dismissal of teacher for showing an 18-rated film was discrimination arising from disability

In City of York v Grosset, the EAT held that a teacher had been discriminated against because of something arising from his disability but that his dismissal was fair.  

Mr Grosset was Head of English at a maintained school in York. He suffers from cystic fibrosis, a condition which requires him to undertake a daily 3-hour exercise regime to clear his lungs. It was accepted by the employer that his condition is a qualifying disability under the Equality Act.

Mr Grosset’s workload at work increased and he suffered stress which worsened his condition.

Mr Grosset showed "Halloween" (an 18-rated film) to a class of 15 and 16 year olds over two lessons. Some members of the class were particularly vulnerable young people. He was suspended and dismissed for gross misconduct for showing the film. At the time of the decision to dismiss, the employer had medical evidence that the misconduct was not caused by the disability.

Mr Grosset brought claims for unfair dismissal and disability discrimination claims including a claim for discrimination arising from disability (a section 15 claim). An employment tribunal found that the decision to dismiss was fair as the decision was within the band of reasonable responses based on the evidence available to the employer at the time.

When considering the discrimination claims, the tribunal took into account new medical evidence produced since the dismissal that the misconduct was in fact linked to the disability. The tribunal therefore found that Mr Grosset had been discriminated against as a consequence of something arising from his disability. It also found that the employer had failed in its duty to make reasonable adjustments.

The EAT agreed. When considering the discrimination arising from disability claim, the EAT noted that the tribunal had evidence before it which showed that the cystic fibrosis caused the misconduct (as Mr Grosset's stress was a mental impairment linked to the cystic fibrosis). It was irrelevant to the discrimination claim that the employer did not have evidence showing this link at the time of the dismissal.

At the remedies hearing, available here, Mr Grosset was awarded just under £650,000, taking into account earnings and pension losses and the fact that he is unlikely to gain a job at an equivalent level in the future. The employer has permission to appeal to the Court of Appeal and the case is due to be heard in February this year.

This case is a stark reminder that there is no need for the employer to know about the link between the “something arising” and the disability for a section 15 claim to be successful.

Supreme Court rules on how much should be deducted from pay due to teachers' strike action

In Hartley v King Edward VI College, the Supreme Court has determined that a day's pay should be calculated as 1/365^th of salary (rather than 1/260^th of salary) when deducting pay for teachers' strike days.

Teachers working at a sixth form college went on strike for a day. The college deducted one day’s pay from their wages, calculated at the daily rate of 1/260^th of their annual salary. This was based on the fact that the teachers’ working days were specified in their contracts as Monday to Friday and so the daily rate was based on five working days a week (5 x 52 weeks a year = 260 working days in a year).

The teachers accepted that they were not entitled to be paid for the strike day.  But they argued that, by virtue of the Apportionment Act 1870, and as their salary accrued day to day at an equal daily rate for every calendar day, the deduction should have been based on 1/365^th of salary.

Following an analysis of the relevant contracts of employment, the Supreme Court held that the Apportionment Act did apply, and the sensible approach was to apportion the annual salary on a day to day basis by treating each day as 1/365^th of annual salary. This decision was based on findings that salary payments were made every month, even when a teacher was on holiday, and the work carried out by them was, in reality, spread throughout the year. Payment was also not limited to periods when the teacher was carrying out directed work, but included preparatory work and other duties which involved working in the evenings, at weekends and in the holidays.

The Supreme Court made clear that a critical feature of the case was that the contracts were "annual contracts". If they had not been, the position would be different, and would depend on the terms of a particular contract. Unfortunately, the Court did not go on to say what is meant by an "annual contract" but the assumption is that it means a permanent, rolling, contract. It was particularly relevant that the teachers were expected to work outside of their contracted hours and days. This suggests that the outcome would not have been the same if they had been employees who worked only contracted hours / days.

School should not assume that this decision will apply to the calculation of a day's pay for all employment contracts (for example when determining the correct payment in lieu of holiday days on termination). This will depend on an analysis of the contract in question, including whether the Apportionment Act applies and whether the contract provides any alternative calculation (e.g. an express provision to confirm the 1/260^th calculation). However, it is possible that this decision could affect non-teaching staff who might be expected to work outside normal contracted hours.

Teacher's suspension ruled a breach of trust and confidence

In Agoreyo v London Borough of Lambeth, the High Court has ruled that the suspension of a teacher was in breach of contract, entitling her to resign and treat herself as constructively dismissed.

Ms Agoreyo was a primary school teacher who commenced work at a school in Lambeth in 2012. She was subject to three separate allegations that she had used unreasonable force against a child in her class who was considered as difficult to manage. The Head Teacher had already investigated two of these incidents and determined that Ms Agoreyo had not used unreasonable force.

Soon after the third allegation, the Executive Head suspended Ms Agoreyo.  The suspension letter confirmed this was not a disciplinary sanction but was a neutral act imposed in order that the investigation could be conducted fairly. Ms Agoreyo resigned on the same day, making reference in her letter to "a lot of very unpleasant issues".

Ms Agoreyo did not have the requisite length of service to bring a constructive unfair dismissal claim, so brought a breach of contract claim in the county court. She argued that her suspension was a repudiatory breach of contract as it was not reasonable or necessary to suspend her in order to conduct a fair investigation. The county court dismissed the claim.

The High Court did not agree. It held that the suspension was in breach of the implied term that employer and employee should not act in a way likely to damage or destroy the relationship of mutual trust and confidence between them. The High Court took into account the fact that the Head Teacher had found two of the allegations were not well founded and had not considered disciplinary action to be necessary. It overturned the county court finding that the teacher had been suspended because of the employer's duty to protect children as this was not the reason given for the suspension in the letter to Ms Agoreyo. The court also held that the employer had breached the contract by suspending the teacher just a few days after putting in place additional support in the classroom when the claimant had been requesting such support for some weeks.

The High Court's criticisms of the employer's suspension procedure are salutary, providing useful guidance for employers considering suspension, especially where there are very serious allegations against an employee which could impact on their future career. The judgment reinforces the need for an employer to ensure that suspension is not a routine or knee-jerk reaction to the allegations by: attempting to hear the employee's and manager's version of events before suspending; proactively considering alternatives to suspension and recording this consideration; and explaining in the suspension letter the reason for the suspension, for example in this case why an investigation could not be carried out fairly without suspension.

To be clear, in our view, it would not have been sufficient, albeit a possible improvement, to have made reference to the duty to protect the child; suspension on those grounds should also be supported by a genuine assessment of risk given the previous unfounded allegations and support measures only recently introduced.

EAT considers when work-related stress may be a disability

In Herry v Dudley Metropolitan Council, the EAT provided helpful guidance on cases where work-related stress may qualify as a disability under the Equality Act.

Mr Herry was a design and technology teacher who was diagnosed with dyslexia but did not inform his employer of this. He took several periods of sick leave, at first citing a number of physical injuries and from June 2011 he was continuously off on sick leave. From October 2013, Mr Herry's sick notes cited “work-related stress” and “stress and anxiety”.

In July 2014, Mr Herry's GP suggested that he might be fit for work on a phased return although he did not return to work. The GP stated in November 2014 that Mr Herry was mentally and physically fit to return to his role but noted that there were outstanding management issues at work causing stress. The GP stated in March 2015: “Patient feels the behaviour of certain individuals [is] what is stopping him from returning to work at the school and causing his stress”.

While still employed, Mr Herry brought a wide range of claims in an employment tribunal, including separate proceedings for race and disability discrimination. The tribunal considered the definition of disability under the Equality Act: a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. It found that Mr Herry was not disabled either on the basis of his dyslexia or stress as neither condition had been shown to have a substantial adverse effect on Mr Herry’s day to day activities.

The EAT agreed, endorsing the approach in J v DLA Piper UK LLP [2010] IRLR 936 and stating that reactions to adverse life events can usually be distinguished from disability because they will not be long term. The EAT noted that there may be cases where a reaction to life events does amount to a disability because it causes a mental impairment which has the necessary long term effect.

However, the EAT commented that there is a class of case where an employee will not compromise over an issue at work, refuses to return to work, and yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. In such cases, the EAT commented, the tribunal is not bound to find that there is a mental impairment having the requisite effect. The EAT suggested that unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise are not of themselves mental impairments. The EAT also held that the tribunal was not bound to find that Mr Herry had a disability simply because he had been certified unfit for work by reason of stress for a long period of time.

The EAT sounded an important note of caution, however. It commented that medical evidence and evidence of any long term substantial adverse effect on the individual “over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction” will still be carefully considered by a tribunal. In this case, such evidence had not been produced to support the employee's claim.

A discriminatory decision to dismiss is very likely also to be unfair dismissal

In O’Brien v Bolton St Catherine’s Academy, the Court of Appeal considered whether a dismissal could be fair if it has been found to be discriminatory.

Mrs O’Brien was a teacher and head of department. She was assaulted by a pupil and developed a stress-related illness which led to 12 months of sickness absence. During this time, two Occupational Health (OH) reports stated she was not fit to return to work. The school consulted the employee about the likelihood of her return to work but she referred the school to her GP. The GP referred the school back to Mrs O’Brien.

Frustrated with the lack of progress in this matter, the school began medical incapacity proceedings. Mrs O’Brien stated during the proceedings that she was receiving treatment for PTSD and hoped to have a phased return to work in a few months’ time. Despite this, the school took the decision to dismiss on the basis of the length of her absence, the lack of any clear information on her likely return to work and a concern that a similar assault could recur. At the internal appeal, Mrs O’Brien presented evidence from a psychologist of likely recovery within 12 sessions of treatment (which she had had by the date of the appeal hearing) and a GP fit note stating she was fit for an immediate return to work. The appeal panel upheld the decision to dismiss based on the inconsistency of the medical evidence and concerns that she was trying to return to work before she was really fit to do so.

Mrs O’Brien brought claims for unfair dismissal and discrimination arising from disability, both of which were upheld by an employment tribunal. On the disability claim, the tribunal found that she had been dismissed because of her long term absence and that absence arose as a consequence of her disability. The tribunal found that the school’s decision to dismiss was not justified as the school had not presented satisfactory evidence of the adverse impact of the continuing absence on the operation of school. Neither had the school weighed up the impact on Mrs O’Brien of dismissing her at that point against the costs to the school of organising cover for a few more months. The tribunal decided that the school could have waited a little longer and obtained a further medical report to support its view that Mrs O’Brien was not fit to return.

The tribunal also held that an employer who had failed to conduct the balancing exercise required to justify its discriminatory decision could not have made a decision to dismiss which fell within the band of reasonable responses.

The EAT disagreed, but the Court of Appeal upheld the original judgment of the employment tribunal. The Court of Appeal noted that the school should have assessed the new medical evidence presented to the appeal panel and sought further evidence on Mrs O’Brien’s fitness for work if it doubted the new evidence. It also held that the tribunal was entitled to find that the school should have provided more particularised evidence of the difficulties caused to the school by the absence.

The Court of Appeal noted that the justification test for the discrimination claim and the band of reasonable responses test are not the same but held that it was legitimate for the tribunal to find that an unjustified discriminatory decision to dismiss could not fall within the band of reasonable responses for unfair dismissal purposes.

In such cases, schools must be cautious of being seen merely to go through the motions, following an absence procedure without evidence to justify its claim that it could not wait.  Assumptions are always a weakness in any decision to dismiss. In most cases employer disciplinary and appeal panels are not medically qualified, so it is difficult and dangerous for them to ignore or contradict medical evidence without some reasoned professional opinion to support the approach they do take.