An employment tribunal in Scotland has awarded a teacher, who had 31 years’ service with South Lanarkshire Council, £61,074.55 in respect of her claims of unfair dismissal and disability discrimination. Mrs Allison Shearer was successful in her claim of menopause related discrimination, with the Tribunal awarding her £15,000 for injury to feelings relating to the acts of discrimination.
Facts
Mrs Shearer worked at Clydesdale Secondary Support Base between 2015 and 2022. During this time, she was taking prescribed medication for high blood pressure, anxiety, low mood and menopausal symptoms.
In June 2022, the Respondent required Mrs Shearer to move from Clydesdale Secondary Support Base to Kear Secondary School, taking effect from the start of the new school year in August 2022. Mrs Shearer raised concerns that the proposed move would have a detrimental effect on her health but the Respondent did not reconsider this decision.
Mrs Shearer was anxious about the high levels of violence and injuries to teaching staff at Kear Secondary School, believing that management were ineffective, and that there was a culture of blaming staff for being assaulted. This was her main concern in moving, which resulted in regular nightmares, disrupted sleep and finding it difficult to think about anything except for the possible move.
In August 2022, Mrs Shearer had a confidential menopause discussion with the Deputy Headteacher, Fiona Cameron, with Human Resources in attendance. Mrs Shearer had an honest and open discussion with Ms Cameron regarding her menopause and the symptoms relating to it. She explained how she valued being at Clydesdale Support Base, and how the environment at Kear Secondary School would be detrimental to her health. However, Mrs Shearer’s concerns were dismissed and she was informed she would have to move to Kear Secondary School as instructed.
Due to the stress, Mrs Shearer commenced a period of absence from August 2022 until she was dismissed in September 2023.
Whilst on sick leave, Mrs Shearer raised a grievance in November 2022 and attended two Occupational Health assessments in October 2022 and in February 2023. Both Occupational Health reports stressed that Mrs Shearer should remain in her current post as moving her to Kear Secondary School would likely impact her mental health negatively. The second Occupational Health report, received in February 2023, confirmed that Mrs Shearer would probably not satisfy the statutory definition of a disabled person and identified that the proposed move was the known trigger for her symptoms worsening. Further, it was recommended that redeployment to other schools in the surrounding area or alternative roles be considered, if she could not remain in her current role.
During her sickness absence, Mrs Shearer’s role within Clydesdale Secondary Support Base was covered by a primary school teacher, while the role within Kear Secondary School had not been filled.
Mrs Shearer’s grievance was not upheld. The Respondent ignored the recommendations in the Occupational Health report received in October 2022. Mrs Shearer’s appeal was also not upheld, even with the additional Occupational Heath report received in February 2023.
Mrs Shearer agreed to a phased return to work in a temporary location until the final stage of the grievance process concluded. During the phased return, she carried out non-teaching duties from home; while there was no reasonable possibility of this becoming a permanent role, it did demonstrate that she was able to return to work in alternative locations.
In June 2023, Mrs Shearer was invited to a capability meeting, which took place in September 2023. During the meeting, Mrs Shearer was offered two alternative posts and it was made very clear to her that if she did not choose one of the posts her employment would be terminated. She was given 4 days to make her decision. Mrs Shearer refused both posts as she regarded them as unsuitable.
Mrs Shearer was dismissed on grounds of capability. Her appeal against the dismissal was unsuccessful.
Tribunal’s Decision
At the commencement of the hearing, it was agreed that Mrs Shearer was disabled in accordance with the statutory definition. Therefore, the tribunal had to consider whether: 1) the Respondent should have afforded Mrs Shearer reasonable adjustments; 2) whether her dismissal was a proportionate means of achieving a legitimate aim; and 3) whether she was unfairly dismissed.
1. Should the Respondent have afforded Mrs Shearer the reasonable adjustment of allowing her to continue or resume working at Clydesdale Support Base?
The tribunal held that this reasonable adjustment should have been afforded. This adjustment would have clearly have alleviated the disadvantage faced by Mrs Shearer. The tribunal concluded that there were no other factors that would have rendered this adjustment as unreasonable and that an alternative candidate could have been selected to take up the post in Kear Secondary School. The tribunal highlighted that Mr Govan should have “displayed a greater willingness to be flexible and to engage with the detail of the claimant’s concerns”.
2. Was dismissing Mrs Shearer a proportionate means of achieving a legitimate aim?
The tribunal also held that the Respondent failed to demonstrate that Mrs Shearer’s dismissal was a proportionate means of achieving a legitimate aim. The tribunal held that less detrimental measures would have served to achieve the school’s aims, such as returning Mrs Shearer to her role in Clydesale and obtaining appropriate cover for Kear Secondary School. The impact of the dismissal on Mrs Shearer outweighed the achievement of the Respondent’s reasonable needs.
The tribunal further stated that if the Respondent had carried out a reasonable search for alternative employment, the dismissal would have become an appropriate and reasonable necessary means of achieving the aims, but the Respondent failed to do so.
3. Was Mrs Shearer’s dismissal was unfair?
The tribunal held that dismissing Mrs Shearer fell outside the range of reasonable responses that might have been adopted by a reasonable employer, deciding that no reasonable employer would have “insisted” that she teach at Kear Secondary School given the effect the move would have had on her health.
The tribunal also concluded that no reasonable employer would have dismissed Mrs Shearer without first carrying out a reasonable search for alternative employment. The tribunal criticised the Respondent for not conducting a search during the busy recruitment period for schools, between Easter and the start of August. The tribunal held that the two alternative vacancies offered to Mrs Shearer were not reasonable alternatives. Further, the tribunal criticised the short period given to Mrs Shearer to consider the alternative vacancies, they held the period as “unreasonable and insufficient” to allow her time to reflect or make further enquiries.
Considerations
Where an employer knows or has good reason to suspect an employee is experiencing menopause symptoms that are significantly affecting their ability to do some or all of their duties, they must offer a confidential discussion with the employee to identify what, if any, reasonable adjustments should be considered. Even if the employer, or Occupational Health, deem it unlikely to be a disability, employers need to take their own view in light of their knowledge. If there is any doubt, employers should seek legal advice to avoid internal grievance processes and expensive Tribunal litigation.
Employers need to be open and flexible to any possible reasonable adjustments and genuinely consider ways to help employees. It should not be treated as a tick box exercise.
Employers also need to create an inclusive culture and support their employees in understanding menopause and its impact.
Lastly, any significant change to an employee’s role should be subject to consultation with the employee first, before any change is imposed. Alternative roles should also be considered. An employer needs to be able to justify why the change is necessary, which they could not demonstrate in this case.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice or information.
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