Miss A Davin v The Governing Body of District CE Primary School and 1 other — 2021

The claimant, a teacher, was dismissed for medical incapability on 31 August 2019 after a medical incapacity hearing on 20 May 2019 and an appeal on 24 June 2019. The tribunal found that her bowel condition and related symptoms amounted to a disability within section 6 Equality Act 2010 from 8 May 2018, and that the respondent knew or should have known that the Equality Act applied from the information recorded in return-to-work and welfare meetings.

On unfair dismissal, the tribunal found the principal reason for dismissal was the claimant's absence and the absence of a definite return-to-work date, which was a potentially fair reason of capability. However, it held that the respondent did not engage in reasonable and appropriate consultation, the welfare meetings were conducted in a way the tribunal accepted as hostile and focused on securing a return date, and the decision to proceed with the 20 May 2019 hearing in the claimant's absence was unreasonable. The respondent had not obtained up-to-date medical information, had relied on a partial reading of Dr King's report, and should have waited at least until after the 5 June 2019 specialist appointment before deciding whether dismissal was justified.