Lessons Learnt from Medical Capability Tribunal Case

A drama teacher brought an employment tribunal action, supported by the NASUWT, against the Maelor School at Penley, Wrexham.

The asthmatic teacher was dismissed from the school after 28 years’ service because of her sickness record.

Mrs Grant-Ryder successfully argued that her illness was exacerbated by her working conditions and upon winning her case against the school, was awarded compensation for loss of earnings and injury to feelings.

How did the school as the employer find themselves in this situation?

Read about the case here.

Where are the shortfalls you may question?

The school had taken a number of steps to support the employee:

• The school arranged for the employee to be temporarily moved to a different classroom;
• The school arranged for a health and safety inspection by Wrexham Council;
• The employee was referred to Occupational Health (several times);
• The employee was assigned another classroom;
• The employee had access to an exclusive-use lavatory;
• The school banned the use of aerosols;
• The school carried out a workplace risk assessment;
• The school followed its attendance management policy and procedure

The OH report had stated that it would likely be reasonable to discount the absences related to the employee’s asthma attacks for the purpose of sickness absence monitoring. The school had done so at some point in its procedure, by setting a target that was exclusive of any aerosol-induced asthma attacks.

However, when the employee triggered under the school’s absence management policy the following academic year with ailments unrelated to her pre-existing condition, the 76 days absence of the previous year related to the individual’s medical condition had been taken into account again.

Despite the measures introduced, the tribunal found that the school had not given due consideration to the reasonable adjustments suggested by OH. The employer’s responsibility is to consider reasonable adjustments i.e. where the school can make minor changes that will have a noteworthy difference (i.e. enable a disabled employee who couldn’t otherwise do their job to do it, then they are expected to make them). The obligation here is to put in place adjustments that are reasonable to the organisation to introduce and have the effect of addressing the substantial disadvantage faced by the disabled employee.

Where reasonable adjustments are suggested by the individual’s GP or by OH it is wise to sit down with the employee to discuss these measures. Ask the employee to highlight what reasonable adjustments they think the school should make that will allow them to carry out their role in full and then reasonably consider them. Be clear on what you can accommodate and what you may not be able to accommodate and if the latter – what the reason is. Invite the employee to come up with solutions to these barriers – you may find a compromise.

Absence management mistakes to avoid

 

1. Failure to follow the sickness absence policy

When have you last read your sickness absence management policy? Do you feel confident in applying the procedure in your organisation? If either of these questions made you feel uneasy it is probably time to a) reacquaint yourself with the policy and b) ensure it is a clear and robust. Sickness absence management should be part of your culture – both senior leaders and wider school staff should have a thorough understanding of their responsibilities. SLT must understand the procedures. They should know what to do when an employee is sick, monitor absences for trends, see if absence triggers have been reached and take action when, and if, required. Equally all employees should know how to report their sickness, what notes they need to present, how short-term frequent absences will be dealt with and what the repercussions for not following the rules are.

2. Inconsistency when applying the policy

For any policy to be robust it needs to be applied fairly and consistently across the board. This is particularly important in order to avoid any employee concerns or discrimination claims.

3. Not carrying out return to work interviews

Is your return to work pro forma up to scratch? The importance of the return to work interview is often undervalued. It is a great opportunity to probe into the reasons and nature of the absence. If there are signs that that they are suffering from a work-related illness or that they have a long-term health issue which could be considered a disability, you can consider what steps can be taken to assist the employee.

4. Not keeping accurate sickness absence records

It may feel like the employee is constantly off work but keeping records of every sickness absence reason will provide you with a true representation of their attendance. It allows you to track trends, assess the efficiency of introduced measures or break down absences by type (or even illness).

5. Not seeking medical advice

An Employment Tribunal will consider whether you properly assessed the employee’s condition or illness to find out their likelihood of returning to work or sustaining acceptable levels of attendance before you decided to dismiss them. It is important that you seek medical evidence prior to giving consideration to a dismissal to fully understand the reasons for the absence. By getting medical evidence, you can find out if there are underlying health issues that could be discussed and addressed, or whether they have a condition which is considered a disability under the Equality Act 2010. Remember your obligation to consider whether and what reasonable adjustments should be made in the workplace to facilitate the employee’s return to work / sustained attendance at work.

6. Failure to follow a fair procedure

An Employment Tribunal will look to see that you consulted with the employee and explored how to support them back into work. It will want to see evidence that you made the necessary reasonable adjustments; sought medical evidence that confirmed that the employee is not likely to return at all or for a prolonged period and you warned the employee that their long-term absence could lead to dismissal. If you get the procedure wrong, it could cost you dearly.

Sources: GOV.UK. (n.d.). Mrs A Grant-Ryder v The Governing Body of the Maelor School and Wrexham County Borough Council: 1600885/2020. [online] Available at: https://www.gov.uk/employment-tribunal-decisions/mrs-a-grant-ryder-v-the-governing-body-of-the-maelor-school-and-wrexham-county-borough-council-1600885-slash-2020 [Accessed 29 Jul. 2021].