Tribunal Ruling Underscores Employer Responsibilities in Disability Discrimination Cases

EMPLOYEE ON FIXED TERM CONTRACT, WINS DISABILITY DISCRIMINATION CASE

A teacher employed on a fixed term contract has won £137, 112 as the result of an unwise comment made by a senior leader after she took repeated time off sick.

Background

Annika Fay Robinson, who was employed at Southgate school, Enfield, North London experienced sciatica, spinal surgery and migraines, resulting in repeated periods of sickness absence. Following back surgery, she was off sick from October 2020 to March 2021. The school then undertook a curriculum review and decided her contract would not be renewed after the year. She was informed of this by email. 

In April 2021 she began a phased return to work but went off again because she was suffering with migraines. She was invited to a meeting in June 2021 with 6 trustees present and was told that by the Deputy Head teacher, Paul Ferrie that her continued absence was letting her colleagues and students down.  

The head teacher of the school was also heard to say “It would be easy to be cynical in that Miss Robinson’s return to work from her back operation coincided with when she was due to go on half pay and that she returned to work for a few days, before going off again”. 

It is thought that the terms of the school’s sickness pay policy meant she was again eligible for full pay. 

Her fixed term contract ended in August 2021, and she made a Tribunal claim against Middlesex Learning Trust for disability discrimination, disability harassment and failure to make reasonable adjustments. 

The tribunal found the comments made amounted to harassment related to her disabilities. They also found that the comments relating to time off sick had created an intimidating or degrading environment. The employee had asked for an Occupational Health assessment but this was not granted. 

Considerations

It can be human nature to take a sceptical view of the timing of an employee’s return to work, particularly if continued absence causes issues with cover and budgets. But all employers must be mindful that assumptions or comments of that nature can amount to harassment and must not override the duty to act fairly and lawfully.

If you are in a position of authority it is essential to avoid comments or language that could be interpreted as blaming or criticising an employee for being unwell. This is particularly key if that employee has a disability. The contractual nature of the relationship is not relevant here either.

This judgment highlights the importance of procedural integrity and awareness in managing disability-related matters.

Employers should train managers to avoid commentary that could be perceived as attributing blame or questioning the legitimacy of absence.  Discrimination cases need no qualifying service.

Outcome

Miss Robinson won a claim of harassment in relation to the remark by the deputy head teacher. She also won claims of unfavourable treatment arising from disability. Other claims made by Robinson were dismissed.

A compensation payment of £137,112 was awarded to Robinson at a later remedy hearing. As part of the ruling, Middlesex Learning Trust must implement disability awareness training for management within 12 months.

Managing Sickness Absence - Key Lessons for Employers

·       Make sure you follow your policy and procedures

·       Treat fixed term workers the same as permanent workers

·       Establish as early as possible if the employee has a disability

·       Take advice from Occupational Health

·       Keep records of all conversations

·       Take extra care not to express opinions – no good will come of it

·       Train managers in disability awareness and harassment

·       Seek expert HR advice as soon as possible