How an Employment Law caseworker in Brighton obtained compensation for a disabled teacher, dismissed whilst off sick.
Karen had served many years as a successful teacher when she started a new job at a local school. Unfortunately, she became seriously ill during her first term and had to take time off to undergo tests. Her condition deteriorated and she became unfit for work prior to Christmas, and wasn’t able to return for the Spring term.
Her doctors were unable to diagnose her symptoms which were affecting her auto-immune system. She had a succession of tests, with a tentative diagnosis of chronic fatigue syndrome, but none of these were definitive.
Karen was referred to Occupational Health whilst she was still waiting for the problem to be identified so treatment could start. She was due to attend a follow up meeting with her specialist and the Occupational Health report indicated that her prospects of returning to work would be clearer after the review with her consultant had taken place.
The school had an ill health capability procedure for dealing with sickness. Normally staff would 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 Amy 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’s symptoms were such that it was likely that her impairment would last more than 12 months.
We informed Karen that if her employer 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.
Karen emailed the school to assert that she was disabled. She identified the discriminatory treatment the school was proposing. She also informed them that she could not attend the hearing as she would be seeing her specialist.
Nevertheless, the school went ahead in her absence, although she was not aware of this until she received a notice of dismissal several days later, to take effect at the end of term.
The notice provisions under Karen’s contract required that in order 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 cannot occur without someone knowing about it and that she was contractually entitled to 4 months’ additional 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 did not improve. It became apparent that she was not going to be able to return to work in the near future.
We were able to agree 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 up any pension losses.
Teachers are entitled to two levels of ill health retirement pay, linked to their pension. They have two years’ in which to make an application. This meant that when Karen received her diagnosis of a rare form of cancer, she was still able to make an application for these payments, either on the basis of her being unable to teach again, or alternatively because she would never be able to work again.