Mr Denzil McDonald v The Governors of Buxton School — 2021

The tribunal found that Mr McDonald was a disabled person at all material times, with prostatism from February 2017, cancer from August 2017, anxiety and depression from March 2018, aggravation of an abdominal wound from March 2018, and hypertension from November 2018. It accepted that he had substantial sickness absence, but rejected his evidence that he frequently wet himself at work or that his toileting difficulties were as severe as he claimed. It also found that the respondent had arranged access to nearby toilet facilities at Wanstead Flats and that an on-call arrangement was available.

On unfair dismissal, the tribunal held that the reason for dismissal was redundancy within s98(2)(c) ERA 1996, arising from a March 2019 restructure that replaced unqualified PE staff with qualified teachers. Applying the redundancy authorities, it found that the claimant's role was not the same as a qualified teacher's role and that the respondent's stated business reason was genuine. In the alternative, if the dismissal had not been redundancy, the tribunal held it would have been a fair SOSR dismissal.

The tribunal also found that the respondent followed a fair process. It accepted that the claimant was offered individual consultation on 1 April 2019, was given the restructure paperwork and Q&A materials, and was consulted collectively through the recognised trade union. It found that the respondent sought alternative vacancies, including roles such as Extended Schools Co-ordinator and pastoral posts, and that the claimant did not respond. The claimant's appeal letter of 9 July 2019 was held to be out of time, and the respondent was entitled to refuse to treat it as a live appeal.

On disability discrimination, the tribunal rejected the s15 claim because it found no causal link between the dismissal and something arising from disability. It held that the restructure and dismissal were driven by clear business reasons and not by the claimant's absence or urinary problems. On direct discrimination, it identified Mr Sylvester Williams, an unqualified English teacher, as an actual comparator and found that the claimant was not treated less favourably because of disability. On reasonable adjustments, it held that the absence policy was applied flexibly, that counting disability-related absence did not create a relevant disadvantage, and that the consultation and appeal complaints failed. The tribunal also held that all disability discrimination complaints before 4 June 2019 were out of time under s123 EqA 2010 and declined to extend time, and it dismissed the proceedings in full without any award.