A teacher was unfairly dismissed when her concerns regarding her absences were not fully considered by the respondent when making the decision to dismiss.

The claimant commenced employment with the respondent in 1991 as a teacher based in the Learning Support Centre.  A disciplinary investigation was commenced after the claimant had left her class unattended. This led to a verbal warning but during this process the claimant started to have a series of long-term absences. This included periods of 38 days, 68 days, 63 days and 95 days from the 17/18 academic year to the 2020/21 Academic Year.  These series of absences led to the Teacher Attendance Procedure being invoked and ultimately led to the claimant’s dismissal on the grounds of capability. Throughout this there were a series of occupational health reports which outlined that it was unlikely that the claimant would consistently return to work.  During this period of absence there was a further disciplinary issue relating to serious misconduct from two classroom incidents which included pupils assaulting other pupils and a lighter allegedly being lit.  For this the claimant was given a final written warning.

In terms of the dismissal, the Board of Governors applied the Capability Procedure where it was found that a teacher’s attendance at work is such as to question whether he or she is capable of providing regular and sustained service. The issue was whether the dismissal was substantively and procedurally fair.

The Tribunal acknowledged that capability was the reason for the dismissal and can be a fair reason. In terms of the procedure, the Tribunal stated that the Capability Procedure was applied in a mechanistic fashion and that there was an inadequate consideration of the claimant’s points regarding the causes for the absence.  Largely the absences were related to stress at work. The Tribunal regarded it as poor management and inadequate support for the claimant, and they held that a reasonable employer would have investigated those matters to establish the true position before concluding that dismissal was the appropriate outcome. The Board of Governors had failed to do that. Accordingly, it was held that the procedure adopted by the second respondent to manage the absences was regarded as falling outside the band of reasonable responses. The Tribunal also found that if a fair procedure had been adopted it was likely that the claimant would not have been dismissed.

The Tribunal outlined the reasons for and against the dismissal being made. This included the fact that the absences were genuine, and the claimant had 31 years’ service but against that noted that the absences would be disruptive especially for a Learning Support Centre class. In balancing those it was found that the decision to dismiss was a response which fell outside the band of reasonable responses.

A remedy hearing was set if the parties were unable to agree a figure.

The case of disciplinary action and ultimately dismissal on the grounds of capability where there is sickness absence is a thorny issue with various contextual matters.  Many situations arise with other issues lurking in the background such as other disciplinary matters or grievances within the workplace.  The Tribunal, here, recognised that where the claimant is raising issues about why they are absent from work that a reasonable employer would investigate those concerns and try to find a way in which the claimant could return to work. As this was not done, it led to the decision to be unfair on both procedural and substantive grounds.

NI Tribunal decisions are available on the OITFET website.