Mr Martin Connolly v The Governing Body of St Michael and St John’s RC Primary School: 2404727/2019

EMPLOYMENT TRIBUNALS

Case No 2404727/2019

Between

Mr Martin ConnollyClaimant

The Governing Body of St Michael and St John’s RC Primary SchoolRespondent

Before

Employment Judge Rice-Birchall

Mr Jones (instructed by Counsel) for claimant

Mr Tinkler (instructed by Counsel) for respondent

Date 11 April 2020

JUDGMENT

The judgment of the Tribunal is that the claimant was fairly dismissed by the respondent. His claim of unfair dismissal fails and is dismissed.

REASONS

[1]An agreed list of issues was presented to the Tribunal which identified the following issues.(i) Can the respondent establish a potentially fair reason for the claimant’s dismissal? The respondent contends that the claimant was dismissed on the grounds of incapability arising from ill-health.

(ii) If the claimant was dismissed on the grounds of incapability arising from illhealth, was the dismissal fair or unfair? In particular, did the respondent:

a. have up to date medical evidence and/or have sufficient regard to the medical evidence prior to deciding to dismiss the claimant by reason of incapability?

b. Have meaningful consultation with the claimant in relation to his continuing absence?

c. give proper consideration to the claimant’s contractual entitlement to full pay for six months and half pay for six months?

d. give appropriate credit for the claimant’s length of service?

e. provide adequate warning to the claimant that he may be dismissed by reason of incapability?

f. consider alternatives to dismissal?

(iii) In all the circumstances, should the respondent have waited any longer before dismissing the claimant and, if so, how much longer?

Remedy

[2]The Tribunal indicated to the parties that it would hear evidence relevant to:a. whether any compensation awarded should be reduced by virtue of the principle in Polkey v A E Dayton Services Limited

1987 ICR 142

and, if so, what reduction would be appropriate; and

b. whether any compensation awarded should be reduced on the grounds that the claimant's actions caused or contributed to his dismissal and, if so, what reduction would be appropriate; but that any other evidence in relation to remedy would not be heard at this stage.

[3]There were no other claims before the Tribunal. Evidence

[4]The Tribunal heard evidence from the claimant himself. On behalf of the respondent, the Tribunal heard evidence from Mrs Mabbot, the Headteacher (HT), Mr Evans, now Chair of Governors, but, at the relevant time, Vice-Chair and Mr Nolan, Chair of Governors at the relevant time.

[5]The Tribunal had the benefit of a bundle of documents comprising some 800 pages. The Tribunal was directed to read certain documents from the witness statements and asked the parties what documents it should read. The Tribunal made it clear that it would not, and could not, read all of the documents in the bundle. Findings of Fact relevant to the case

[6]St Michael’s and St John’s Catholic Primary School is in the Ribble Valley. It educates just under 200 children split over 7 classes. Around the time when the claimant’s employment was terminated there was a headteacher, a deputy headteacher, 6 full time equivalent teachers and 5 teaching assistants.

[7]The claimant was employed by the respondent as a Deputy Headteacher from September 2006 until his employment was terminated on 31 December 2018. He had previously been employed as a teacher elsewhere since 1989.

[8]The claimant’s role, prior to the termination of his employment, included the Deputy Headteacher duties and teaching a year 6 cohort of pupils. The year 6 cohort is the cohort which takes its SATs tests and so it is a pressurised year for pupils and teachers alike. Accordingly, the claimant had both teaching and leadership responsibilities.

[9]The claimant’s contract of employment entitled him to 100 working days of full pay during sickness absence, followed by half pay for 100 working days.

[10]In May 2013, the school was categorised as “requires improvement” following an Offsted inspection. A new headteacher (“HT”) was appointed in January 2014. The Local Authority Monitoring and Intervention Team worked with the HT to improve standards in the school. That process included reviewing staff performance.

[11]Along with other staff members, the claimant’s performance was reviewed and it was explained to him that some improvement was required. Support was put in place, with which the claimant engaged.

[12]In 2015, the school was graded “good”. The Senior Leadership Team, which included the claimant, was highly commended.

[13]In 2016, the school was rated “outstanding” by Ofsted. The lessons delivered by the claimant were highlighted as outstanding. Nonetheless, the HT still had concerns over the claimant’s performance, and gave specific targets to the claimant through the appraisal process for the academic year 2016/7.

[14]Following further observations, the HT became increasingly concerned about the claimant’s ability to perform his role. In July 2017, a support plan was put in place to take effect with a new cohort of children from September 2017. A temporary assistant headteacher was appointed to work alongside the claimant due the HT being committed to work some of her time in another school. However, even once the HT was back at the school full time, the assistant head was kept in place as a result of the claimant’s absence from work.

[15]A further observation, by the HT, in September 2017 raised further concerns. As the HT was not seeing the improvement she required, the claimant was invited to an informal capability meeting which took place on 10 October 2017. An informal capability plan was outlined, which would cover the next 6.5 weeks, and professional development opportunities were identified for the claimant.

[16]A further observation took place during this period, but on this occasion, the HT was accompanied by a Local Authority Schools’ advisor. Both the HT and the external advisor agreed that the lesson was not to the standard expected and so the claimant was invited, by a letter dated 11 December 2017, to a meeting to discuss proceeding to the formal capability process, in accordance with the School’s capability procedures, on 9 January 2018.

[17]On 14 December 2017, the claimant began a two week period of absence from school having slipped on ice and hurt his back.

[18]The formal capability meeting took place on 11 January 2018. The claimant was supported by his union representative. The HT was present, as was Jane Pythian, school advisor, and Claire Neville from HR. The HT outlined her concerns and also set out the support that had been provided to the claimant. In response, the claimant handed in a statement. The hearing was adjourned so that the statement could be read. In it, the claimant requested an adjournment to allow him to prepare a full response to the matter put to him.

[19]The claimant did not return to the hearing after the adjournment and signed off as unfit for work for two weeks by reason of a respiratory tract infection.

[20]The HT decided to move the claimant onto the formal stages of the capability policy. He was issued with a formal written warning and it was explained, by a letter dated 15 January 2018, that failure to improve to a satisfactory standard within a set period could result in action being taken on grounds of incapability, possibly resulting in the claimant’s dismissal. The claimant was informed that his request for a postponement had been refused as he had been aware of the issues for some time and had been accompanied at the meeting. The claimant was informed that the review period would be the six weeks after his return to school. The claimant was given the right of appeal.

[21]By letter dated 22 January 208, the claimant appealed the formal capability written warning on the basis that it did not reflect that he had been unwell and had to leave the meeting, and that his request for an adjournment had been refused.

[22]The claimant returned to work on 26 January 2018. At his return to work meeting, the claimant did not report any health issues and did not wish to be referred to OH. A further meeting was held with the claimant at which he was given a copy of the formal capability plan.

[23]The claimant’s appeal was held on 14 March 2018. Mr Evans chaired the meeting and was accompanied by two other governors. The HT was present, as was HR. The claimant was accompanied by his brother in law. The claimant raised a concern at the outset that the HT would be present and left the meeting. The governors resolved that the meeting should continue in the claimant’s absence as the procedures provide for the HT to be present, and so the claimant should have been aware of it.

[24]The adviser was also called as a witness. She confirmed that the HT’s concerns were, in her view, legitimate and that the school had provided support above and beyond what would normally be expected to the claimant.

[25]Having left the meeting, the claimant never returned to work. His fit note stated that the reason for his absence was stress.

[26]The Committee concluded that there were legitimate concerns about the claimant’s capability following evidence presented both by the HT and by the adviser and that it was reasonable for the HT to address those concerns; that the addressing of the concerns had been fair, thorough and rigorous and that the support offered had been above and beyond what would have been considered reasonable. The Committee encouraged the claimant to engage with the remainder of the process and noted that it appeared he was not accepting of the process. The warning issued was upheld.

[27]The claimant was referred to OH on 18 April 2018. A report was provided to the HT. The OH report described the claimant as “unfit for work and his full duties”. It went on to state: “I would advise management, to have a supportive meeting, with Mr Connolly, about the work issues, to try to resolve these, in a timely manner. I would also advise a stress risk assessment is considered for his case. As I am of the opinion that, unless the work issues are resolved, a return to work will not be realised.” OH was unable to provide a timeframe for a return to work, but did state that the claimant was: “..in counselling at present, and a timely resolution to the workplace issues is advised, to facilitate a return to work, in due course.”

[28]A sickness review meeting took place on 1 May 2018. The claimant was accompanied by his wife. A stress risk assessment, which had been partially completed by the claimant’s wife, was discussed and, following the meeting, a copy was sent to the claimant with the HT’s comments. The stress risk assessment covered a number of the matters relevant to the claimant’s grievance.

[29]During the claimant’s absence, another teacher was assigned to the claimant’s class for the mornings.

[30]A further sickness review meeting took place on 4 June 2018. A letter confirming the meeting was sent to the claimant. It notes that the claimant had been declared unfit for work for a further two months and that, whilst the claimant had indicated that he did intend to return to work eventually, the HT was concerned about the impact of his continuing absence. The HT confirmed that the claimant would be placed into year 4 from September 2018, which would avoid the added pressure of SATS tests, but that the capability procedure would continue, as the capability issues related to general teaching issues and his role as Deputy Headteacher.

[31]The HT confirmed that she had referred matters to the School’s Attendance and Dismissal Committee, as she believed that the claimant’s continuing absence was having a negative impact on the continuity of education, the school budget and the burden to colleagues in terms of his leadership role. The letter clearly sets out that one of the options available to the Committee, should they feel the claimant’s absence was no longer sustainable, would be to dismiss him on the grounds of capability owing to ill-health. At this stage, the claimant had been off school (ie out of teaching) for less than twelve weeks if only term time weeks were counted.

[32]On 18 June 2018, the claimant wrote a letter of grievance to the Chair of Governors. He alleged unfair treatment, bullying, harassment and discrimination by the HT.

[33]The meeting of the Attendance and Dismissal Committee was confirmed on 21 June 2018. It was to be held on 9 July 2018.

[34]On 28 June 2018, the Chair of Governors responded to the claimant’s grievance. The claimant was referred to the School’s grievance procedure which states: “Where a grievance is raised during the formal stages of a different procedure and the grievance relates to matters already under consideration as part of that procedure this would normally be dealt with as part of that procedure.” The Chair concluded that the issues raised could either be dealt with through the capability policy or the stress risk assessment and told the claimant that he would be free to raise matters which he felt had contributed to his ill-health at the forthcoming Attendance and Dismissal Committee.

[35]As a result of the claimant taking a holiday, the Attendance and Dismissal Committee meeting was postponed until 6 September 2018.

[36]The claimant submitted a report to the committee. His report made reference to his grievance, which, he stated, he expected to be addressed at that meeting “or at the earliest opportunity”. It also referred to the fact that, in his whole career, he had had very little absence. The claimant specifically stated that he was working with his doctor “to return to work on October 1 2018, subject to agreeing to a plan on a phased return.”

[37]The HT also prepared a report. That report explained the reasons for the HT’s decision to refer the matter to the Attendance Committee, inter alia, as follows: no indication of a return date making planning very difficult; the on-going cost of the absence; the impact of the absence on the children and on staffing decisions; the impact of the claimant’s absence on other teachers who were picking up additional duties; and uncertainty over strategic decisions.

[38]The HT’s report concluded by stating that the Committee were asked to “take appropriate action”.

[39]The claimant’s sick note was due to expire on 1 October 2018.

[40]The attendance meeting took place on 6 September 2018. Three governors were present. Mr Evans chaired the Attendance and Dismissal Committee of the Governing Body which comprised Mr Evans and two other governors. The HT attended to read through the report and explain the impact of the claimant’s absence. HR was also in attendance, as was the claimant and his wife and a notetaker. It is noted that Mr Evans had previously dealt with the claimant’s appeal against his written warning in respect of capability.

[41]The HT read out her report. The committee took into account the claimant’s absence and the OH report of 18 April 2018. It noted that the OH report had suggested a supportive meeting and a stress risk assessment and noted that there had been a review meeting on 1 May and that a stress risk assessment had been completed jointly by the claimant and the HT. It also noted that the claimant had been offered a change of cohort of pupils. The HT explained the impact of the claimant’s absence on the school which included the financial impact; the impact on the children (the year 6 class had had seven different supply teachers and had achieved its lowest SATs scores); and extra responsibilities for other staff members. It was understood that the claimant’s then current fit note was due to expire on 1 October 2018.

[42]The claimant did not have any questions for the HT. He read out his report and stated that his stress was caused by the HT placing unnecessary demands on him. He stated that it remained a mystery as to why he had been placed on the capability procedure. He explained that he had raised a grievance and that he felt he was being victimised by the process. He complained of being micro-managed but admitted to needing mentoring. The claimant stated that he could not guarantee being ready to return to work on 1 October and could give no assurances in that regard. He also said, when asked if he would be able to remain at work once he returned, bearing in mind that the capability process was still ongoing, that it would depend on how he was treated by the HT. He also confirmed that the position hadn’t changed since the OH report and that he could only return to work once the workplace issues had been resolved. He thanked the committee and confirmed that he felt he had had a fair and transparent hearing.

[43]The outcome was that the claimant was dismissed, with his dismissal to take effect at the end of the term, on 31 December 2018. At that stage he had missed 16 weeks of teaching and was still being paid full pay.

[44]The claimant’s dismissal was confirmed by letter dated 10 September 2018. The letter confirmed that the meeting had been held in accordance with the respondent’s procedure for dealing with long-term absences.

[45]The letter confirmed that the claimant had been absent from work since 14 March 2018; that his latest fit note stated that he would be unfit until 28 September 2018; that the claimant had stated that he would be fit to return on 1 October 2018 and that he believed that, following a four week phased return, he would be fit to return to his full duties, but that he adduced no medical evidence to support that contention and couldn’t give assurances as it would depend what his doctor said; that the latest OH report of 18 April could not provide a time frame for recovery as it was dependent on workplace issues being resolved and had recommended a supportive discussion and a stress risk assessment to attempt to resolve the workplace issues; that sickness absence meetings had been held with the claimant on 1 May and 4 June 2018; and that he had had the opportunity to comment on the stress risk assessment and on the HT’s comments on it.

[46]It was confirmed that it was not possible to cease action under the capability procedures; that the claimant had stated that a sustained return to work was unlikely if the HT did not change her management approach towards him; that no evidence was presented to suggest that the HT had placed unnecessary pressure on him; that the claimant appeared not to be accepting of the need for action under the capability procedure; that the grievance related to matters already under consideration and so would be dealt with as part of the proceedings; that there was no evidence that the HT’s actions had not been supportive; and that the claimant’s continuing absence was having a detrimental impact on the school. The claimant’s employment was terminated with effect from 31 December 2018. The claimant was given the right of appeal.

[47]On 10 September 2018, the claimant went to see his GP, who wrote to the respondent to say that he could not see any reason why the claimant could not work. the claimant submitted a fit note to say he could return to work from 1 October 2018.

[48]The claimant met with HT on 20 September 2018 to discuss his return to work. At the meeting, the claimant explained that he felt “a bit better because the resolution at the meeting alleviated some of the stress.”

[49]The claimant was referred to OH by the HT as she wanted to ensure that he was fit for work given his previous indications that he would require a phased return to work. The questions posed in the referral asked what had changed since the meeting on 6 September when the claimant had said he did not know when he would be fit for work and whether the claimant was well enough to sustain a return to work, and , if so, under “what structure”.

[50]OH referred the claimant to an occupational physician, which caused a further delay.

[51]The claimant appealed against the decision to dismiss him by a letter dated 24 September 2018. By a letter dated 18 October 2018, the claimant was invited to an appeal hearing to be held on 16 November 2018.

[52]A sickness review meeting took place on 2 November 2018. It was agreed that the claimant would return to a year 4 class and, following the meeting, the claimant was sent information regarding the year 4 curriculum.

[53]The OH report was not received until 6 December. In the meantime, the claimant’s appeal against his dismissal had been re-arranged for 13 December 2018.

[54]The OH report stated that, whilst the claimant was medically fit to return to work, “the solution is in the workplace” and that a phased return to work was suggested “with appropriate support and reviews to support him back into work”. OH confirmed that the claimant was fit to return to work, but stated that there were concerns over whether the claimant’s mental well-being could deteriorate resulting in further absence if the claimant felt that he remained under “unnecessary pressures”.

[55]In fact, the claimant never returned to work. The HT said it was a busy time of year and she just didn’t get round to speaking to the claimant.

[56]The appeal hearing went ahead on 13 December 2018. Three governors were present at the appeal hearing, as well as an HR advisor to the governors. The HT attended with HR support and the claimant attended with his wife. A notetaker was also present.

[57]The HT confirmed that she would be prepared to put the capability process on hold for the period of any phased return but that it would not be possible to withdraw that process altogether.

[58]There was a discussion of “the grievance issues”. The HT was asked to expand on some of the grievance issues. The HT responded to state that there were a number of inaccuracies and that, for example, the claimant had never asked for more release time for his deputy HT duties.

[59]The HT was asked whether he would receive support “for any other things”. She replied that he would not, “because other things as stated by MC are unsubstantiated and are being considered via the capability procedures”.

[60]The claimant confirmed that he had been deemed fit to work during his notice period. He confirmed that the decision to dismiss him had alleviated the stress to some extent and that he was fit for work. When asked if, if the Governors were to uphold his appeal, he would be fit to work immediately, he stated: “if [the capability procedures] are to continue then it would be very difficult, albeit not impossible, to return to work” and then “ it would be very difficult to undertake my []roles whilst they are hanging over my head.”

[61]The claimant was then asked whether, if he returned with the capability procedures still taking place, he would be fit for work. His answer was “unlikely, but not impossible.” When asked why he had appealed, he responded to say that it was because of the possibility of returning as a teacher without the DHT role and without the capability proceedings. He confirmed that he had not made any formal request to relinquish the DHT role. When asked to interpret what the OH report stated, the claimant said that he could return to work with no stresses but that, if the capability procedures were still in place then the stress would still be there and he would struggle. The claimant was directly asked: “If the capability procedures continue ..it is highly likely that you could not remain in work, correct? he replied: Yes, it would be unlikely that I would be able to stay.

[62]In summing up, the claimant confirmed that he would be able to sustain any return to work if the capability procedures were withdrawn.

[63]The committee then considered the information before it. It considered the grievance and concluded that it was satisfied that the Chair of the Governing Body had acted appropriately in confirming that the issues raised fell within the capability and attendance procedures. The committee felt the claimant had been afforded the opportunity to raise issues and appeal decisions when entitled to do so. It noted that it was the act of dismissal which the claimant confirmed had alleviated his stress such that he felt fit to return to work and that his fitness for work was “subject to workplace adjustments”. It noted that the primary adjustment the claimant referred to was for the capability process to be ceased. It noted that MC felt that it was unlikely that he was able to sustain a return to work if the process continued and also that it was unlikely that he would successfully come out of the formal process. It concluded that, even if the claimant’s DHT duties were able to be removed, it would not prevent the claimant being subject to the capability process in relation to his class teaching role. It also noted that it was of extreme concern that the claimant was unlikely to be able to sustain a return to work if he was subject to the process. It also considered the detrimental impact of the claimant’s continued absence as regards cost; the impact on the children and added pressure on colleagues and concluded that the decision to terminate his employment should stand.

[64]The decision was confirmed by a letter dated 19 December 2018. Law Reason for dismissal

[65]The respondent accepts that the claimant was dismissed. It is thus for the respondent to show one of the five potentially reasons for dismissal (Section 98(1) and

(2) of the Employment Rights Act 1996 ("the 1996 Act").

[66]A dismissal will be unfair unless it is for one of the admissible reasons specified in the 1996 Act. Those reasons include “ a reason which relates to the capability ..of the employee for performing work of the kind which he was employed by the employer to do.”

[67]The task of identifying the real reason for dismissal rests with the Tribunal (notwithstanding that the burden rests on the employer to prove that it was one of the five potentially fair reasons). The correct characterisation of the reason for dismissal will depend on what was at the forefront of the employer’s mind. If it was the employee’s “skill, aptitude, health or any other physical or mental quality” then the reason for dismissal would be capability. Fairness

[68]If a potentially fair reason is shown by the employer, the Tribunal needs to have regard to Section 98(4) of the 1996 Act which provides that: "the determination of the question whether dismissal is fair or unfair (having regard to the reasons shown by the employer):(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case".

[69]The test in section 98(4) test this was further clarified by the Employment Appeal Tribunal in Iceland Frozen Foods Limited -v- Jones

[1982] IRLR 439

:(i) the starting point should always be the words of Section 98(4) themselves;

(ii) in applying the section an Employment Tribunal must consider the reasonableness of the employer's conduct not simply whether they (the members of the Employment Tribunal) consider the dismissal to be fair;

(iii) in judging the reasonableness of the employer's conduct an Employment Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer in many, though not all cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(iv) the function of the Employment Tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair".

[70]The reason for dismissal is significant in determining fairness.

[71]There is a good deal of case law around dismissal of employees with long-term illness. Notably, in Spencer v Paragon Wallpapers

[1977] ICR 301

it states: “Every case depends on its own circumstances. The basic question which has to be determined in every case is whether in all the circumstances the employer can be expected to wait any longer and if so how much longer. Every case will be different depending upon the circumstances.”

[72]It is noted in that case that the relevant circumstances might include the nature of the illness, the likely length of the continuing absence, the need of the employer to have the work done which the employee was engaged to do, and so on.

[73]In BS v Dundee City Council

2013 CSIH 91

it was noted that there are three important themes:a. where an employee has been absent form work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer;

b. there is a need to consult the employee and to take his views into account. It states that, if he is no better and does not know when he can return to work that is a significant factor operating against him;

c. there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.

[74]The Tribunal must be satisfied that the procedure followed in relation to the claimant’s dismissal fell within the band of reasonable responses (Whitbread plc v Hall

[2001] EWCA Civ 268

[75]The Tribunal should consider the process as a whole, including the appeal, when determining whether the dismissal was fair or unfair.

[76]The Tribunal was referred, by the claimant’s representative, to O’Brien v Bolton St Catherine’s Academy

[2017] EWCA Civ 14

in support of the contention that, where, at the time of the internal appeal, there is some evidence that the claimant might be fit to work, it would be disproportionate to dismiss without further assessment.

[77]The claimant’s representative also referred to McAdie v RBS

[2007] EWCA Civ 806

as authority for the proposition that, where an employee is off work with work-related stress, which he says, is evident from the claimant’s medical notes, the employer must go the extra mile in finding alternative employment or put up with a longer period of sickness absence than would otherwise be reasonable. the key issue is whether the employer acted reasonably in all the circumstances, which include the fact that the employer was responsible for the ill-health. Remedy

[78]If a claim of unfair dismissal is well founded, the claimant may be awarded compensation under Section 113(4) of the 1996 Act. Such compensation comprises a basic award and a compensatory award, calculated in accordance with sections 119 to 126 of the 1996 Act.

[79]Where the Tribunal considers that any conduct of the claimant prior to dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, it must reduce the amount accordingly (section 122(2)). In this regard, the question is not whether the employer believed the claimant committed the conduct in question but whether the Tribunal so believes.

[80]So far as the compensatory award is concerned, the 1996 Act provides that the amount of compensation shall be such amount as is just and equitable based on the loss arising out of the unfair dismissal. In Polkey –v- A E Dayton Services Limited

1987 ICR 142

the House of Lords stated that the compensatory award may be reduced or limited to reflect the chance that the claimant would have been fairly dismissed in any event had a fair procedure been followed.

[81]Furthermore, where the Tribunal finds that dismissal was to any extent caused or contributed to by any action of the claimant, it must reduce the compensatory award by such proportion as it considers just and equitable having regard to that finding (s123(6)). As with any reduction under s122(2), the question is not whether the employer believed the claimant committed the conduct in question but whether the Tribunal so believes. Conclusions Reason for Dismissal

Conclusions

[82]The decision to dismiss the claimant came about because the claimant was absent from work, and that that absence was likely to continue. The Tribunal is satisfied that, at the time the decision to dismiss was taken, the claimant’s capability was the respondent’s reason for dismissal and that it dismissed the claimant for that reason. That much is clearly evidenced by the meeting following which the claimant was dismissed and the letter which confirms his dismissal.

[83]No other reason has been put forward by the claimant as a potential reason for dismissal. It is clear from undisputed facts (and agreed by the parties) that the claimant was dismissed by reason of his capability.

[84]Accordingly, the Tribunal is satisfied that the claimant’s dismissal was for a potentially fair reason falling within Section 98 of the 1996 Act, namely the claimant’s capability. This is significant because the Tribunal can only properly consider the question of fairness in the context of the reason found for the dismissal. Fairness

[85]The Tribunal considered the various factors identified in the case law set out above, the first of which is medical evidence.

[86]The medical evidence taken into account by the respondent when it made its decision to dismiss the claimant on 6 September 2018 consisted of the OH report from May 2018, which had been produced following a telephone call with the claimant, and the claimant’s fit notes which cited “work related stress” as the reason for his absence. The claimant’s current fit note was due to expire on 30 Sep, just 3 weeks away. By the time the appeal was heard, the claimant had a fit note from his GP to say that he was fit to return to work, and an OH report which was received shortly before the appeal hearing, with a view to the claimant returning to work. The OH report stated that, whilst the claimant was medically fit to return to work, “the solution is in the workplace” and that a phased return to work was suggested “with appropriate support and reviews to support him back into work”. OH confirmed that the claimant was fit to return to work, but stated that there were concerns over whether the claimant’s mental well-being could deteriorate resulting in further absence if the claimant felt that he remained under “unnecessary pressures”. Of course, an employer must take into account all information, including the information which has become available to it on appeal.

[87]As regards consultation with the claimant, by the time of the attendance meeting on 6 September 2018, the claimant had had two sickness review meetings. HT recommended that the claimant should be put forward to the Attendance Committee in May 2018 by which time he had been absent for approximately only two months. It took until September to hold the Attendance Committee hearing. The respondent did consult the employee and take his views into account, for example as regards alternative duties, and the stress risk assessment, and the possibility of removing his DHT role was discussed on appeal.

[88]As regards his entitlement to contractual sick pay, the claimant’s contract of employment entitled him to 100 working days of full pay during sickness absence, followed by half pay for 100 working days. When he was dismissed, he was still entitled to full pay and had not started to be paid half pay. At the time the claimant was told that matters had been referred to the respondent’s Attendance Committee, the claimant had been off school (ie out of teaching) for less than twelve weeks if only term time weeks were counted.

[89]As regards the claimant’s length of service, the claimant had long service and was employed by the respondent as a Deputy Headteacher from September 2006 until his employment was terminated on 31 December 2018. He had previously been employed as a teacher elsewhere since 1989. It is also noted that, prior to the capability process being commenced, he had an excellent attendance record.

[90]The claimant was warned that dismissal was a possibility. A letter confirming the sickness review meeting of 4 June 2018 was sent to the claimant. The HT confirmed that she had referred matters to the School’s Attendance and Dismissal Committee, as she believed that the claimant’s continuing absence was having a negative impact on the continuity of education, the school budget and the burden to colleagues in terms of his leadership role. The letter clearly sets out that one of the options available to the Committee, should they feel the claimant’s absence was no longer sustainable, would be to dismiss him on the grounds of capability owing to ill-health.

[91]As regards whether alternatives were considered, some discussion did take place about different options available to the claimant. For example the HT confirmed that the claimant would be placed into year 4 from September 2018, which would avoid the added pressure of SATS tests, but that the capability procedure would continue, as the capability issues related to general teaching issues and his role as Deputy Headteacher. As stated above, the possibility of the claimant’s DHT responsibilities being removed was also discussed on appeal.

[92]Another important factor is the grievance raised by the claimant. On 18 June 2018, the claimant wrote a letter of grievance to the Chair of Governors. He alleged unfair treatment, bullying, harassment and discrimination by the HT. The claimant was referred to the School’s grievance procedure which states: “Where a grievance is raised during the formal stages of a different procedure and the grievance relates to matters already under consideration as part of that procedure this would normally be dealt with as part of that procedure.” The Chair concluded that the issues raised could either be dealt with through the capability policy or the stress risk assessment and told the claimant that he would be free to raise matters which he felt had contributed to his ill-health at the forthcoming Attendance and Dismissal Committee. The claimant did explain at the attendance and dismissal committee that he had raised a grievance and that he felt he was being victimised by the process. It was also raised on appeal. However, it was made clear to the claimant that his grievance would be dealt with in the existing and ongoing processes and he had ample opportunity to raise any relevant issues.

[93]The Tribunal noted that Mr Evans chaired both the claimant’s appeal within the capability process, and was also chair of the Attendance and Dismissal Committee. However, it also notes that the respondent is a small employer and the its governors are volunteers. As Mr Evans said during evidence, there was little choice as most of the governors had full time jobs and availability was an issue.

[94]In reaching its conclusions, the Tribunal notes that this is not a standard capability dismissal. The central issue is not whether the claimant’s health was likely to improve within a reasonable period of time as, at the time of the claimant’s appeal against his dismissal, he was certified by his GP as fit to return to work.

[95]Of great significance in this case is that the claimant was clear, both at the dismissal hearing and at the appeal hearing that he was unlikely to be able to sustain a return to work if the capability procedure were to continue following his return to work. At the appeal hearing, the claimant was asked whether, if he returned with the capability procedures still taking place, he would be fit for work. His answer was “unlikely, but not impossible.” When asked why he had appealed, he responded to say that it was because of the possibility of returning as a teacher without the DHT role and without the capability proceedings. He confirmed that he had not made any formal request to relinquish the DHT role. When asked to interpret what the OH report stated, the claimant said that he could return to work with no stresses but that, if the capability procedures were still in place then the stress would still be there and he would struggle. The claimant was directly asked: “If the capability procedures continue ..it is highly likely that you could not remain in work, correct? he replied: Yes, it would be unlikely that I would be able to stay.

[96]The claimant’s representative argues in submissions that the claimant never says it would be impossible for him to remain at work. That is true, but the language used was clear. The claimant believed it was unlikely he would remain at work if the capability procedures were to continue. in those circumstances, it was reasonable for the employer to dismiss, as there was a total lack of certainty over any sustained return to work.

[97]As regards the capability procedure, the Tribunal was not asked to consider whether or not the respondent’s decision to put the claimant into a capability process was reasonable. However, the Tribunal notes that the assessment that such a process was required was verified by an external source as well as HT. There was no evidence before the Tribunal to suggest that the capability process was improperly put into place. It is noted that the claimant had also unsuccessfully appealed against the capability process and that the claimant himself had agreed he needed mentoring.

[98]The Tribunal also notes that it was apparent that the claimant considered that the capability process was unjustified. It also notes that the claimant was absent from work from the date of the appeal hearing against the formal capability written warning.

[99]It is also important to note the factors which were taken into account by the respondent in reaching its decision and the severity of the impact on the respondent of the claimant’s absence. Stability for a cohort of children, rather than relying on a series of supply teachers, for example, is a very significant and important factor. It would be highly disruptive for a teacher to return, only to leave again shortly thereafter. His absence also created a cost for the respondent and additional workload for other teachers.

[100]If this had been a standard capability dismissal, it would have been a reasonable response of a reasonable employer to seek additional medical evidence and to consult further with the claimant, and wait longer, bearing in mind the fact that he was still contractually entitled to full pay and his significant length of service.

[101]However, as regards the factors set out above, the considerations are different to those in a more standard capability dismissal scenario. For example, although it was important to understand the true medical position, that had to be placed in the context of the claimant’s position as regards a return to work which is that, in summary, he confirmed that he would be unlikely to be able to sustain if the capability procedures were to continue. The claimant submits that it was disproportionate to dismiss without further assessment, but it is difficult to see what that further assessment would achieve when the claimant was clear that he was very unlikely to be able to sustain a return to work if the capability procedures were to continue. At no point did the claimant confirm that he would be able to sustain a return to work with the capability process ongoing, quite the opposite. It would have been open for him at any time to do so.

[102]For the same reason, the question of “could the respondent have waited any longer?” takes on a different relevance. It was not a question of the respondent waiting any longer as the claimant was fit to return to work imminently. The point was that he could not commit to a sustained return to work under the capability process, and yet the capability process was to continue. Waiting would not have achieved anything, as the claimant’s position had been the same throughout, namely that he could not envisage a sustained return to work if the capability process was to be resumed.

[103]Similarly, factors such as length of service, the claimant’s past excellent attendance record and so on cannot have the same relevance as when the Tribunal is asking whether or not an employer should have waited longer, for example when an employee is off sick and may at some point get better. This is not such a case. Here the only question could have been, shall we let him have a chance to return to see of he can sustain it, even though he tells us he is unlikely to be able to. The respondent did not offer such a chance, but, given the disruption of such a trial on the children and staff of the school, it was a response open to a reasonable employer in all the circumstances of the case.

[104]As regards the grievance, the Tribunal is satisfied that the claimant had adequate opportunity to raise any issues he wanted to be considered. It was not forgotten about, or swept under the carpet, and was openly discussed in both the dismissal and appeal hearing as well as issues raised within the stress risk assessment. The claimant did not give any evidence to demonstrate that there were issues he wanted to raise which he had been unable to.

[105]For the avoidance of doubt, there was no evidence before the Tribunal for it to be able to conclude that the respondent was responsible for the claimant’s illhealth.

[106]The Tribunal is satisfied that, taking into account all of the above circumstances, dismissal was a response falling within the range of reasonable responses open to a reasonable employer. The respondent was entitled to conclude that the claimant would not be capable of a sustained return to work. In all the circumstances of the case (including the size and administrative resources of the employer), the respondent acted reasonably in treating the claimant’s capability as sufficient reason for dismissing him.

[107]It follows that the claimant’s complaint of unfair dismissal fails and is dismissed.