Employment Law Case Update: Sickness Related Dismissal

All employees will occasionally need time off work for ill health and employers should be prepared for the eventuality that this is frequent or on a long term basis.  Our Employment Law team today reviews the case of Mrs A Grant-Ryder v The Governing Body of the Maelor School and others 2021 which involves the treatment of a teacher with frequent absences.

Mrs Grant-Ryder was employed as a drama teacher from 1991 until her dismissal in December 2019. In 2013/14 Mrs Grant-Ryder developed late-onset asthma, a condition that she asserts was made worse by the conditions of the classrooms in which she worked and the use of aerosols at the school. Consequently, Mrs Grant-Ryder had frequent short-term absences related to her asthma.

The school tried to find ways to alleviate her condition such as moving her to different classrooms, reiterating the schools ‘no aerosols’ policy to pupils and parents, and providing her with a different bathroom to use so she would be less likely to come into contact with sprays. Despite these measures, Mrs Grant-Ryder continued to have absences related to her asthma and was taken through stages 1 and 2 of the school’s Absence Management Policy. Her last asthma-related absence occurred during the 2017/18 academic year. After this, she was absent in 2018/19 to recover from a planned shoulder operation, and on two separate occasions when a chair she was sitting on collapsed, but she had no further absences related to her asthma.

In June 2019, a stage 3 absence hearing was held to further consider Mrs Grant-Ryder’s attendance record and agree on a way forward. After this hearing, a committee of school governors unanimously decided Mrs Grant-Ryder should be dismissed due to insufficient improvement in her levels of attendance. Mrs Grant-Ryder appealed the decision but was unsuccessful. She subsequently filed a claim against the school for discrimination and unfair dismissal.

The Employment Tribunal (ET) stated it was “incumbent upon” the school to consider the following factors when making their decision to dismiss:

• Mrs Grant-Ryder’s most recent attendance records and the “lack of any asthma-related absences” in the 2018/19 academic year;
• The likelihood of frequent asthma-related absences recurring in the future;
• Up to date medical evidence.

Judge Povey stated there was “an inherent unfairness” in dismissing Mrs Grant-Ryder when it appeared that her asthma, which had been the main cause of her poor attendance, was under control and would not cause frequent short-term absences in the future. The decision to dismiss was based on the presumption that Mrs Grant-Ryder’s attendance would not improve but the ET found that this conclusion “conflated” her asthma-related absences with her shoulder-related absences and was not “reasonably tenable” in light of the evidence available to the school at the time. The claim of unfair dismissal was therefore upheld.

The ET also upheld Mrs Grant-Ryder’s claim of disability discrimination, and failure to make reasonable adjustments. A remedy hearing was scheduled for a later date.

This case reminds employers that when deciding whether or not to dismiss someone for ill-health it is important to have up to date medical evidence and to ensure all possible reasonable adjustments have been considered. When determining the likelihood of increased attendance, employers should also examine the reasons for an employee’s absence, rather than just the number of absences.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.