How an Employment Lawyer in Brighton obtained compensation for a disabled teacher dismissed unfairly while off sick.
Karen had many years as a successful teacher behind her when she started a new job at a local school in Brighton. Unfortunately, she became ill during her first term and had to take some time off. Her condition deteriorated and she became unfit for work prior to Christmas and wasn’t fit enough to return for the Spring term. Her medical team were unable to diagnose the problem despite a succession of tests and tentative diagnoses, but none of these were definitive.
Karen was referred to Occupational Health just before she was due for a follow up meeting with her specialist. This Occupational Health report indicated that her prospects of returning to work would be clearer after that review had taken place.
The school had a capability procedure for dealing with sickness under which staff would normally go through several review stages before dismissal would be contemplated. Notwithstanding this policy Karen’s school decided to arrange a Stage 3 hearing to consider a recommendation to dismiss her. Worse still they arranged it for the day she was due to see her specialist.
We advised Karen that she was disabled for the purposes of the Equality Act 2010. The definition of disability requires an impairment to have lasted, or be expected to last at least a year. Karen had been affected for long enough for it to be apparent that her impairment would last more than 12 months. As her illness had a substantially adverse affect on her day to day activities, the fact that there was no diagnoses was irrelevant.
We further advised her that if her school unfairly dismissed her due to her sickness absence, this would be discrimination arising from disability. The school would not be able to justify this when the latest Occupational Health advice was to wait and see what the specialist said. We drafted an email for Karen to send to the school to assert that she was disabled, and to set out that if they dismissed her this would be discriminatory treatment. She also advised them that she would not be able to attend the hearing as she was seeing her specialist.
Nevertheless, the school indicated that they would go ahead with the Stage 3 capability dismissal meeting in her absence. We wrote to them advising them that this was discriminatory. Several days later she received a notice of dismissal to take effect at the end of term.
The notice provisions under Karen’s contract required meant that for that period of notice to be effective she should have been informed of her dismissal on the day the hearing had taken place. We advised Karen that dismissal could not occur without her being informed on the day the hearing took place, and therefore she was entitled to an additional four months’ notice.
We negotiated with the school on Karen’s behalf asserting her right to proper notice and that she had been the victim of disability discrimination.
Negotiations took some time during which Karen’s health deteriorated and she received a diagnosis of a rare form of cancer. It was apparent that she would not be able to return to work in the near future which meant that we would not be able to claim for her continuing loss of earnings.
We agreed terms under which Karen received the pay she would have received up to the end of the extended notice period and payments were made into her pension scheme to make good that loss. In addition, we advised her that as long as she made a claim within two years she would be entitled to claim an ill health retirement pension.
This enabled Karen to move forward and concentrate on her recovery.