J Anderson and N Bakshi * v Represented by: Ms S Harkins - Lay Representative Mr Henry O’Boyle The Board of Directors of St Philip’s School Plains — 2022

The claimant had worked for the respondent since 1993 and was a principal teacher by 2006. After developing problems with his left knee in late 2018, he underwent knee replacement surgery on 9 September 2019. Occupational health and specialist reports in 2020 and 2021 said he could perform many day-to-day activities and other work tasks, but could not safely undertake the physical restraint element of Therapeutic Crisis Intervention, which the respondent treated as essential for pupil-facing roles after organisational changes in 2019. The respondent met the claimant, obtained updated medical advice, considered whether he could return on amended duties, and investigated the availability of support and alternative roles before dismissing him for capability on 29 April 2021. His appeal was unsuccessful.

On the disability discrimination claim, the tribunal found that the claimant had not proved that his knee condition amounted to a disability within section 6 Equality Act 2010. It relied on the absence of evidence about the effect of the impairment on normal day-to-day activities, together with the medical evidence showing improvement after surgery, including walking, cycling, driving, using stairs, and doing ordinary domestic tasks. Because disability was not established, the discrimination complaints were dismissed.

The tribunal also said that, even if the claimant had been disabled, the direct discrimination and reasonable adjustments complaints would still have failed. It held that a hypothetical comparator with the same abilities would have been treated in the same way because the respondent required staff in pupil-facing roles to be trained in TCI and capable of physical holding. The tribunal accepted that temporary exceptions could arise, such as during training or illness, but found no evidence of any permanent exemption. It further held that the suggested adjustment of having another member of staff permanently available to carry out physical holding for the claimant was not reasonable.

On unfair dismissal, the tribunal accepted capability as the genuine reason for dismissal under section 98(2)(a) Employment Rights Act 1996. It found that the respondent had followed a reasonable process: it held welfare and capability meetings, read the occupational health reports, obtained further specialist advice, consulted the claimant about alternatives and adjustments, and investigated how often teachers became involved in incidents requiring physical holding. Applying section 98(4) and the band of reasonable responses approach, the tribunal concluded that it was not reasonable to wait any longer because the medical restriction was likely to continue and the respondent could not safely place the claimant back into a pupil-facing role. The claim was therefore dismissed in its entirety.