Employee with Asperger’s syndrome wins disability discrimination claim after being fired for sickness absence (Mr I Wells v The Governing Body of Great Yarmouth High School – ET/3401100/2015)

In the case of Mr I Wells v The Governing Body of Great Yarmouth High School (ET/3401100/2015) the Employment Tribunal held that the dismissal of an autistic teacher had been unfair and discriminatory.

The facts in Mr I Wells v The Governing Body of Great Yarmouth High School

Mr I Wells (the ‘Claimant’) commenced employment with the Governing Body of Great Yarmouth High School (the ‘Respondent’) on 1 September 2016.  The Claimant was promoted to Key Stage 4 Mathematics Leader of Learning effective 1 September 2010 and his salary increased because of that additional responsibility.  The Claimant moved very swiftly from the unqualified teacher status that he had when first employed to a position of responsibility in 2010.

In 2011 the Claimant took on additional responsibilities on a temporary basis (as coordinator of the ICT unit), which was seen a form of temporary promotion and involved an increase in salary; he was expected to revert back to his substantive post and previous salary on 1 January 2013. The Claimant returned to teaching maths slightly later in the year in September 2013 due to assisting a new head of ICT become familiar with the relevant systems. In October 2012, the Claimant applied for the post of Curriculum Lead but was unsuccessful.

On 8 July 2013 the Claimant was observed in one of his lessons. The feedback from the observation – although noting a number of areas were considered “good” and “there are some good ideas”- was that the Claimant’s skills were “not adequate” or “requiring improvement”. The observation also noted that there were areas that “needed development” such as planning, pace, length of time spent on activities, and standards of behaviour. The agreed action was for help and support with lesson planning.

On 4 September 2013 a meeting took place between the Claimant and management. In this meeting a Personal Improvement Plan (PIP) for the Claimant was discussed, with the threat of a formal capability procedure commencing if his performance did not improve.

A further meeting was held on 4 December 2013 to review the Claimant’s performance, and shortly after this meeting the Claimant commenced a long period of sickness absence.  The initial ‘sick notes’ gave his condition as “low mood”, as well as anxiety and depression, from January 2014 to 24 February 2014.  Thereafter the sick notes stated he was suffering from anxiety with depression up to 8 August 2014. The Respondent became aware in March 2014 that the Claimant had been diagnosed as on the autistic spectrum.

The Claimant attended a return to work meeting on 8 September 2014. In this meeting it was discussed that the Claimant would undertake a phased return to work, and that a stress risk assessment would be undertaken to help the Claimant manage his return to work. However, the phased return to work and stress risk assessment were not carried out by the Respondent.

On 22 September 2014 the Claimant received a letter inviting him to a meeting in order to discuss his performance. The letter made it clear that if improvement was not forthcoming then the Respondent may commence its formal capability procedure. On 9 December 2014 the Claimant’s GP certified the Claimant as being unfit to work, and after this date the Claimant did not return to work.

In February 2015 an Occupational Health report was produced. This report (dated 5 February 2015) confirmed that the Claimant was suffering from severe anxiety and mild/moderate low mood. The prognosis of the doctor producing the report was that the Claimant remained unfit for work and that a return in the near future was unlikely. The Respondent, having not acted upon the information that the Claimant was on the autistic spectrum, failed to refer this information to the Occupational Health adviser.

Between 9 and 12 February 2015 the Respondent and the Claimant’s trade union representative communicated with each other regarding a potential settlement agreement – in this email correspondence the Respondent made it clear that either a settlement agreement was agreed or the Claimant would proceed to an ‘ill health dismissal hearing’. Settlement terms were not agreed and no settlement agreement was signed.

After the failure of the negotiations the Claimant was invited by letter dated 13 February 2015 to attend the threatened “ill-health dismissal hearing”.

The Claimant was invited by letter, dated 13 February 2015, to a meeting on 25 February 2015 which was the threatened “ill health dismissal hearing”. The Claimant had indicated prior to 25 February 2015 that his trade union official would attend the meeting in his absence, so he did not attend this meeting. The outcome of this capability hearing was that the Claimant was dismissed from his employment for the reason of capability/performance.

The Claimant’s trade union representative submitted the Claimant’s appeal on 9 March 2015, appealing against the decision to dismiss on the basis that it was unreasonable and unfair given the evidence presented and the failure of the Respondent to adequately support him since September 2011. This was followed up by an email from the trade union representative dated 10 March 2015 confirming that they would also rely on the School’s failure to comply with both its own procedures and those of Norfolk County Council, and a beach of the duty of care owed by the Respondent to the Claimant.

The appeal was heard on 26 March 2015 with the Claimant referring to being on the autistic spectrum; the Respondent denied being made aware of his condition and dismissed the Claimant’s appeal, upholding the decision to dismiss.

A joint medical report produced for the Employment Tribunal dated 29 February 2016 that was prepared following interviews with the Claimant on 19 and 23 February 2016, confirmed that a formal diagnosis of Asperger’s Syndrome was made on 23 February 2016. This is a lifelong diagnosis and the effect is long term and would be expected to last for the rest of the Claimant’s life.  The Claimant also suffered from anxiety and depression which had lasted for more than 12 months. The report referred to particular difficulties the Claimant experiences in dealing with change, especially without the right kind of support, would be prone to stress, anxiety and depression.  This in turn would have a substantial adverse effect on his ability to carry out normal day to day activities.

The decision of the Employment Tribunal

The Employment Tribunal held that the Claimant was ‘disabled’ by virtue of his Asperger’s syndrome (which the Respondent knew about since March 2014) and the anxiety & depression that he suffered from.

The Employment Tribunal held that the Claimant had been unfairly dismissed from his employment – XYZ.

The Employment Tribunal further held that the Claimant’s dismissal (due to his sickness absence) was an act of discrimination (discrimination arising from disability) – he was dismissed because of the sickness absence, and that the sickness absence had arisen because of something relating to his disability. The Respondent had known of the Claimant’s disability at the relevant times and the Respondent had not shown that the dismissal was a proportionate means of achieving a legitimate aim.

The Employment Tribunal also held that the Claimant’s dismissal was indirectly discriminatory and unfair, as the dismissal was outside of the range of reasonable as the dismissal was discriminatory, it failed to consider reasonable alternatives to dismissal, and the dismissal was pre-judged.

Our lawyers’ views on the case

Stephen Norton, a lawyer at Redmans, commented on the case as follows: “An interesting aspect of this case concerns the wider interpretation given to when the employer should have been aware of the employee’s disability. Although the employer had not been formally notified of his disability before 2016, they were given earlier clues based on his symptoms of anxiety and depression which had lasted more than 12 months – the Employment Tribunal therefore held that the Respondent reasonably had knowledge as of the earlier dates, when they had been given the ‘clues’ of the Claimant’s condition.”

The decision of the Employment Tribunal in Mr I Wells v The Governing Body of Great Yarmouth High School (ET/3401100/2015) can be found here.