The importance of medical evidence for capability dismissals
In the case of Brightman v TIAA Ltd, the Employment Appeal Tribunal overturned a decision against a worker who had been dismissed for medical incapacity.Read more
Mrs Aleem was employed by E-Act Academy as a science teacher but became unable to teach due to her mental health problems, which were classed as a disability. When she returned to work after a period of sickness absence in March 2016, she moved into an alternative role as a cover supervisor instead of returning to her teaching position.
The alternative role meant that she did not have to undertake normal teaching duties. Mrs Aleem continued to be paid as a teacher whilst she trialled the new role for a probationary period of three months, despite the cover supervisor role attracting a lower salary.
After the probationary period finished and following occupational health advice indicating that she was not fit to return to teaching, Mrs Aleem accepted the role of cover supervisor on a permanent basis. Once the role was accepted on a permanent basis and her grievance about the reduction in her pay had been concluded, Mrs Aleem’s salary was reduced to that of a cover supervisor and she subsequently brought an employment tribunal claim for failure to make reasonable adjustments on the basis that her salary did not continue at the higher teacher’s pay rate.
Mrs Aleem’s claim in the employment tribunal failed, as it was found that to continue to pay the higher teacher rate indefinitely would not be reasonable. In coming to this decision, the tribunal relied on several factors, including the “financial difficulties” the respondent faced, alongside the significant extra costs that would be incurred in continuing to pay the higher teacher rate for an indefinite period.
Mrs Aleem submitted an appeal to the Employment Appeal Tribunal (EAT) which was subsequently rejected. The Employment Appeal Tribunal (EAT) confirmed that the tribunal had properly concluded that it was not reasonable to expect the respondent to continue to pay the claimant at the rates associated with an old role. The Employment Appeal Tribunal (EAT) held that the tribunal had correctly found that it was a reasonable adjustment to continue the old rate of pay whilst she was trialling the role and her grievance was being considered, and that once the processes had been concluded, these considerations no longer applied.
The Employment Appeal Tribunal (EAT) also held that the tribunal was not wrong to consider the significant additional cost that would be involved if they had continued to pay her at her original rate; and/or evidence provided by the respondent of the financial difficulties they were facing when concluding that the adjustment was not reasonable.
Mrs Aleem’s case is distinguishable to that of G4S Cash Solutions (UK) Ltd -v- Powell where the Employment Appeal Tribunal (EAT) held it was a reasonable adjustment to maintain the higher rate of pay. In that case, the employer had indicated that the previous and higher rate of pay would be continued as part of an agreement to return to work. However, in Mrs Aleem’s case, it had always been clearly communicated that the higher rate of pay was only for the trial period and she accepted the supervisor role on that basis.
This case highlights how vital clear and effective communication is when dealing with returns to work. If it is envisaged that an employee will need to return to an alternative role, the employer should make expressly clear the conditions of that role, particularly if they relate to a potential or anticipated drop in pay. That way, employees can make informed decisions about whether to accept the role and, at the same time, employers will be able to demonstrate that their actions are reasonable in the context of the Equality Act.
This case is also a helpful reminder that a tribunal will consider a number of factors when determining whether a particular adjustment is reasonable in the circumstances.
For further information and support with reasonable adjustments within your school, please contact us on 01332 226 155 or complete the form below.
Scroll to next section
Scroll back to the top