Ms S Sleeman, Counsel For the v Respondent — 2017

Mr Reid was employed by the London Borough of Lewisham from 1998 until his dismissal on 31 December 2015 as a part-time permanent music teacher at Horniman School. He had an anxiety disorder and was signed off work from 9 September 2014 after a dispute about his 2014/15 timetable. He later lodged a grievance alleging bullying and unequal treatment, including an incident in which he said the Headteacher stereotyped him when he was carrying an iMac. The grievance was not upheld.

The tribunal accepted that the claimant's prolonged absence was linked to unresolved workplace issues, and that occupational health reports had advised the employer to organise a meeting with him before his return to discuss his concerns and reduce the stressors. It found, however, that the failure to promote reconciliation and the failure to obtain an updated occupational health report were not unfavourable treatment arising in consequence of disability. The tribunal also rejected the reasonable adjustments case because the attendance requirement relied on was not applied to the claimant in the way pleaded, and the alternative formulation was not a PCP.

On the section 15 claim, the tribunal accepted that the dismissal itself arose in consequence of disability because it flowed from the claimant's long-term absence caused by his anxiety and depression. It nevertheless held that dismissal was proportionate to the respondent's legitimate aim of ensuring that staff were available and present to teach, given the length of the absence and the impact on the school's ability to provide continuity in music teaching. The disability discrimination claim therefore failed.

On unfair dismissal, the tribunal found the reason was capability but held that the process was unfair. It concluded that the decision to dismiss had effectively been taken in July 2015 when the claimant was put forward for medical redeployment, without proper consultation on his medical position. The stage 3 hearing proceeded before an updated occupational health report had been obtained, and the appeal panel misunderstood the distinction between grievance mediation and reconciliation aimed at facilitating a return to work. The tribunal found the appeal failed to address that issue properly and did not seek further medical clarification.

The tribunal held that the dismissal was unfair, but it assessed the chance of the claimant returning to work if a fair procedure had been followed at no more than 50%. It therefore applied a 50% Polkey reduction to any compensatory award. No remedy figure was fixed at this stage, and a separate hearing on remedy was to be listed.