School that suspended bipolar teacher deemed fit for work was discriminatory, tribunal finds

4 Sep 2019 By Maggie Baska

Judge rules school trust ‘changed its mind’ on medical evidence submitted at the start of claimant’s suspension

A teacher with bipolar disorder was discriminated against by his employer after it continued to suspend him despite him being determined medically fit to work, a tribunal has ruled. 

The Manchester employment tribunal (ET) found Gary Day-Davies, a humanities teacher for the United Learning Trust, was subjected to discrimination after the trust rejected evidence from a psychologist and Day-Davies’ GP that he was well enough to work.

While the ET found the initial suspension was fair, Judge Paul Holmes cited that Day-Davies had “extremely quickly” obtained and provided the trust with the medical evidence that it required to lift the suspension.

Holmes also questioned why the trust later “changed its mind” and allowed Day-Davies to return to work on the basis of the same medical advice it initially rejected.

Additional claims of victimisation were withdrawn, and a number of other claims of discrimination were dismissed.

The tribunal heard that Day-Davies, who started working for the trust in February 2015, had a type of bipolar disorder that meant he was particularly affected by fluctuating mood episodes – mania and hypomania – sometimes during the course of a day. These could also be accompanied by significant depressive episodes. 

On 4 September 2017, Day-Davies went into school on the morning of a staff training session prior to pupils returning for the new term, during which his behaviour was noticed by Andrew Griffin, a principal for one of the trust’s schools, and Anne Lucas, an HR manager for the trust. The tribunal heard that Griffin and Lucas “were of the view that he was unfit to remain at work”.

Other colleagues who observed him that morning also expressed concern about his behaviour. 

The same day, Day-Davies met with Griffin and Lucas and told them about a previous telephone consultation he had with the trust’s occupational health (OH) department. After a bout of illness and a previous suicide attempt the month before, the OH team had expressed the view he was unfit for work – an opinion Day-Davies disagreed with, citing that the OH department was not familiar with his condition. 

In light of this information and Day-Davies’ behaviour that morning, Griffin told Day-Davies that, while he could stay in school for that day and the next, he could not attend later in the week when pupils would be in school.

Day-Davies disagreed with this request and considered the school could not make such a decision without expert medical opinion. He sent an email to Lisa Cole, the trust’s head of HR, suggesting that the proposed action by the school and Griffin was unlawful. 

Later that day, Cole consulted with Griffin and Lucas and wrote to Day-Davies saying she was in full support of their actions. She said the school had a duty of care to ensure that he and the children were safe and, if they believed that either may be at risk, then they were able to ask him not to attend.

The same day, Day-Davies authorised his GP to release a medical report on the effects of his condition, and met with a clinical psychologist. The psychologist wrote to the school to say she had “no concerns based upon her assessment about the risks” Day-Davies posed to either himself or anyone else. 

Day-Davies attended school the following day, 5 September, where he met with Griffin, who formally suspended Day-Davies on medical grounds with immediate effect. He said his decision was based primarily on medical advice of the OH adviser whose opinion was that he was unfit for work. 

Griffin said further medical opinion had not been received, and once a second opinion had been obtained then the suspension would be reviewed.

Day-Davies contacted Lucas and Griffin later by email in which he reported an appointment with his GP. He said the GP would only issue a fit note if he was actually ill, which he was not. He ended by saying that accordingly he was fit and available for work.

On 6 September, Day-Davies raised a grievance with the trust about his medical suspension without grounds. He said the grievance was a legitimate concern regarding the trust’s policy and practice, a legal breach and a breach of health and safety regulations.

He emailed Lucas on 7 September to confirm the school had acknowledged the receipt of the psychologist’s letter. Lucas replied saying that she would ask Griffin to confirm receipt of the report, and went on to say the psychologist report was not a medical report and that a second medical opinion was still needed. 

However, on 13 September, Day-Davies’ medical suspension was lifted following a meeting with Griffin. He returned to work on 18 September following consultations and assessments with his psychologist.

In a separate claim, lodged as part of the same tribunal, Day-Davies argued that he was unfairly given a first warning for absences caused by his disability.

Between May and July, Day-Davies had been absent for a total of 42 days, triggering the trust’s absence management policy. The reasons for these absences were recorded as being for stress, depression, anxiety and other neurological reasons. 

On 20 October, at a meeting with the curriculum area lead for humanities and an HR partner at the trust, Day-Davies was issued a written warning for short-term absence, with a target of no absences until February 2018.

Day-Davies appealed the decision, arguing that the absence policy “did not allow for disability”, and that no return to work meetings had taken place upon his return to work. On 23 November, the trust allowed the appeal, deciding the decision to issue a written warning was not appropriate.

On 29 December, Day-Davies presented a number of claims to the Manchester ET. 

The tribunal ruled that Day-Davies had been discriminated against in two instances – his continued suspension, and when the trust administered a first-stage warning under the absence management procedure. But all other claims of disability discrimination were dismissed and a claim of victimisation was withdrawn.

Judge Paul Holmes cited that Day-Davies had “extremely quickly” obtained and provided the trust with the medical evidence that it required to lift the suspension. Holmes questioned why the trust later “changed its mind” and allowed Day-Davies to return to work on the basis of the same medical advice it initially rejected.

Holmes said: “The answer is that nothing changed, Lisa Cole… apparently changed her mind, and [Day-Davies] was allowed to return to work on the basis of the same medical evidence [United Learning Trust] had initially rejected when he provided it on 4 September 2017.”

Angela Brumpton, partner at Gunnercooke, said that while suspension was supposed to be an opportunity to investigate and not an indicator of guilt, it is "not a neutral act". She explained that suspension should be kept under review, and individuals be suspended for no longer than is necessary. 

"It may amount to a breach of contract or a discrimination if an employee fails to review the necessity of a suspension and keeps an employee out of work for longer than is necessary," Brumpton said. "The terms of any suspension should also be clearly communicated and tailored to the situation."

A remedy hearing has yet to be set. Neither United Learning Trust nor Day-Davies could be reached for comment.

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