Employers are entitled to dismiss workers who are incapable of adequately doing their jobs – but what if such incapacity arises from a disability? The Employment Appeal Tribunal (EAT) addressed that issue in a case concerning a teacher who suffered from dyslexia and hearing impairment.
The teacher became the subject of a formal capability procedure after concerns were raised about her lesson planning, classroom management and book-marking. After her trade union representative raised the possibility of a relationship between poor performance and disability, expert reports were obtained. An occupational health report stated that the teacher’s disabilities were having an adverse effect on her ability to fulfil her role.
The headteacher of the school where she worked decided to refer the case to the governing body with a recommendation to dismiss. The governors proceeded to take that course and the teacher’s internal appeal was later rejected. She subsequently lodged Employment Tribunal (ET) proceedings, claiming unfair dismissal and disability discrimination based on a failure to make reasonable adjustments.
In dismissing her unfair dismissal claim, the ET roundly rejected claims that she had been the victim of a conspiracy. It found that the capability procedure was pursued with scrupulous honesty and fairness and that the reason for her dismissal was that her teaching was found not to be to the required standard.
Her disability discrimination claim was also rejected on the basis that there was no satisfactory evidence that she had been placed at any disadvantage by the capability procedure or by the requirement to achieve a good standard of teaching. It had not been reasonably necessary to make adjustments to cater for her disabilities.
In upholding her appeal against that outcome, the EAT noted that the ET had made no independent, objective assessment of the effect of her disabilities on her work as a teacher or her performance in the capability procedure. She was entitled to receive a more detailed and systematic analysis before the ET concluded that she had not been put at a substantial disadvantage by her disabilities.
The ET’s conclusion that it was not reasonably necessary to make adjustments to her working environment, including provision of specialist software, could also not be supported. There had been no express assessment of the likely effect, cost and practicality of such adjustments. The ET’s inadequate reasoning in respect of the disability discrimination issues may have affected its conclusions on the unfair dismissal claim.
In remitting the case for reconsideration by a freshly constituted ET, the EAT noted that it took that step with some hesitation and reluctance. The original ET hearing had lasted 13 days and further litigation was unlikely to do anyone any good in the end. The EAT strongly recommended that the parties engage in mediation with a view to reaching a settlement as soon as possible.