Managing sickness absence isn’t always straightforward, but the way employers handle these conversations can have serious legal consequences. In Robinson v Middlesex Learning Trust, a teacher was awarded £140,000 after she was told she “let colleagues and students down” by taking sick leave. This case demonstrates how missteps in handling sickness absence can potentially lead to discrimination claims and costly consequences.
Background
Annika Robinson was employed by Middlesex Learning Trust as a teacher at their school known as Southgate Academy between 1 September 2020 and 31 August 2021. Robinson was employed on a one-year fixed term contract.
A few weeks after starting her role, Robinson was referred to Occupational Health because of her sciatica. The following month, Robinson underwent a spinal surgery and was unable to return to work until March 2021. However, Robinson soon went off sick from work again due to suffering from migraines.
On 18 January 2021, while Robinson remained off work, the Academy’s Senior Leadership Team held a curriculum review. As part of this review, Robinson’s fixed term contract was not renewed as the school decided to reduce teaching hours in Robinson’s department.
On 22 January 2021, a formal letter was sent to Robinson to confirm that her employment would end on 31 August 2021. Robinson did not see this letter until 11 March 2021 because it was sent to her work email.
On 17 March 2021, a second Occupational Health referral was made. This report stated that her back pain, migraines, anxiety and depression were likely to qualify as disabilities under the Equality Act.
On 18 June 2021, Robinson was invited to an attendance management meeting, with six members of staff present. During the meeting, Paul Ferrie, Senior Deputy Headteacher, told Robinson that she had “let [her] colleagues down and [her] students down” by being off sick. Ferrie went on further to say that “both students and colleagues have suffered as a result of [Robinson’s] absence.”
Martin Lavelle, Headteacher, was also said to have made a comment saying, “it would be easy to be cynical in that [Robinson’s] return to work from her back operation coincided with when she was due to go on half pay and that she returned to work for a few days before going off with ill health again.”
On 24 June 2021, Robinson requested another Occupational Health referral regarding her migraines. The Academy declined, based on cost and impracticality of a phased return. Robinson’s contract ended on 31 August 2021.
Robinson subsequently lodged claims for discrimination arising from disability, failure to make reasonable adjustments and harassment related to disability in the Employment Tribunal.
Tribunal decision
Robinson was successful in her claim for discrimination arising from disability and harassment related to disability.
The Respondent conceded that the non-renewal of Robinson’s contract amounted to unfavourable treatment. The Tribunal noted that Robinson received an email before she joined which stated that she would be offered a permanent contract following a successful teaching observation. However, the observation never took place because of her illness. The Tribunal therefore concluded that were it not for Robinson’s sickness absence, it was probable that she would have succeeded in obtaining a permanent role and would have not been automatically selected for termination in January 2021. The Tribunal also determined that failing to properly notify Robinson that her contract was not being renewed amounted to unfavourable treatment.
The Tribunal decided that the comments made by Ferrie and Lavelle regarding Robinson’s sickness absence had amounted to unwanted conduct and that these comments were both unsympathetic and unnecessary.
The Tribunal recommend that the Academy implement disability awareness training for its management staff.
Lessons for employers
- Fixed term workers must not be treated less favourably than permanent staff – Their status should not be used as a route to termination or reason to exclude them from a proper sickness management process.
- Obtain occupational health reports – In cases of sickness absence, employers should actively pursue an occupational health referral or obtain up to date medical evidence before making decisions regarding contract renewal or capability.
- Be mindful of comments made – Employers should be mindful of the comments made to employees as there is a risk that such comments could amount to harassment.
- Review your absence management policies – Employers should regularly review their absence management policies and procedures.
How we can help
For further information or to discuss the issues raised within this case please contact us to speak to a member of our Employment Team.
