Teacher sacked for falling asleep in class wins £170,000 at court after school 'immediately dismisses'

A teacher with “significant mental health problems” who was dismissed for failing to properly report absences, mood swings and sleep problems at work has been awarded £168,441.30 by an employment tribunal for disability discrimination and unfair dismissal.

Sitting in front of a Central London Employment TribunalEmployment Judge Lewis ruled that Wetherby Prep School for Boys in Notting Hill – formerly attended by Prince William and Prince Harry – had failed to make reasonable adjustments for Jason Smith, a senior teacher, in relation to a formal capacity meeting held in Smith’s absence, at which the decision to dismiss him was made “without hearing the claimant’s voice, either in person or in written submissions.”

It was also found that Smith had been given “no prior warning” and that he “was not told it was an investigative meeting or what it might lead to, but simply that it was an informal meeting.”

Ultimately, the tribunal found that Smith had been unfairly dismissed because the school proceeded directly to dismissal without following any of the earlier stages of one of their policies. “Had the respondent followed one of their formal policies, the claimant would have been absolutely clear about the boundaries regarding his conduct and attendance levels and would have been given a fair opportunity to improve before his job was at stake,” the court said.

Background

Jason Smith was employed as a senior teacher at Wetherby Prep School for Boys in Notting Hill from September 2006. He had, the court heard, “significant mental health problems which affected his emotions and affected his ability to work”. He was first absent due to mental health issues in 2020 following a relationship breakdown and was reported sick on a number of occasions over the next two years due to anxiety and depression, until he was finally dismissed on 1 July 2022 after 15 years’ service.

During his periods of sick leave, the court noted that “he was treated very supportively for most of that time”. Three occupational health reports were produced from 2020 until his dismissal, highlighting Smith’s anxiety and depression.

On 21 February 2022, Smith’s supervisor, Deputy Head Anna Dingle, was notified by two members of staff that he had fallen asleep in class. On 22 February 2022, Smith texted Dingle to say that he had just woken up with a fever and that he had tested positive for Covid. He returned to work on 7 March 2022 and Dingle told him that he had fallen asleep in class. He denied this, saying he just wanted to “rest his eyes”.

On 15 March 2022, Smith was immediately summoned to a meeting with Dingle, HR officer Ms Gajjar and another HR officer as the minutes secretary. He was given no prior notice of the meeting or what it would be about, and was not told that it was an investigative meeting that would result in an investigation report. He was not told that he could bring anyone with him to

to accompany him. He was told they would cover a range of topics, including his failure to report his absences on time and falling asleep in class. Smith gave various excuses. He said he had Covid; was “a deep thinker and closed his eyes to think,” that he was not leading the class, and that he had “a big lunch.”

On March 25, 2022, the last day of the semester, Smith was not at work and had not notified the school. At 1:58 p.m., Dingle emailed Smith to ask if he was okay, and he responded at 6:16 p.m. that he had been sick all day and had just gotten out of bed. In a meeting on Monday, April 25, 2022, Smith said the absence was a buildup of exhaustion and stress that came with the end of the semester. He said he woke up at 10 or 11 a.m. and thought, “What’s the point?” before falling back asleep.

Meanwhile, Dingle prepared a detailed investigation report, dated May 11, 2022. It set out the specific allegations of failing to comply with the absence policy and not letting them know by 7:30 a.m. if he could not come to work that day, falling asleep on duty, and “a broader concern about the employee’s ability to carry out his/her teaching role in light of the numerous health and behavioral issues that have impacted on his role in recent years.”

On May 16, 2022, Smith received an email asking him to attend a formal capacity meeting. He was told that a possible outcome was dismissal. Smith was also told that he could be accompanied by a colleague or union official. The meeting was postponed a number of times by Smith, “given his ongoing anxiety/depression and mental health,” and because on one of the dates the person he was bringing with him could not attend.

Paul Brereton, HR manager, decided to move the hearing to July 1 because “he felt there was no indication as to when the claimant would be well enough to attend.” He said they had given the claimant a month’s notice of the new date and that “there would have been sufficient time to make alternative arrangements if his companion could not attend.” The hearing went ahead without Smith present and Brereton decided to dismiss Smith because of his history of absences, repeated failure to follow procedures for reporting absences, unpredictable temperament, overly strict classroom management resulting in complaints from parents and students, and sleeping on the job.

Smith appealed. At the end of his appeal, he requested confirmation of several reasonable adjustments to facilitate his attendance at the appeal hearing. These included confirmation that the appeal hearing would be via Zoom/Teams and that he could bring a friend with him for moral support. He did not bring anyone to the appeal hearing, as he was unsure whether he would be allowed to bring a school colleague, as Dingle had previously told him to keep the proceedings “confidential”. His appeal was dismissed.

Jury’s comments

Employment Judge Lewis ruled that the failure to adjourn the hearing on 1 July until Smith was fit to attend and his chosen supervisor could come, resulted in no reasonable adjustments being made.

“This placed the claimant at a significant disadvantage because, due to his disability, he was unable to attend the hearing at that time and certainly not without a companion,” the judge said. “Putting forward his arguments would not have had the same persuasive effect even if he had been able to do so within the limited time. The end result was that he was dismissed without being heard. He had had no opportunity to comment on the investigation report.

“He didn’t even know that the investigation meeting was an investigation meeting that could lead to dismissal proceedings. He had not had the opportunity to “accompanied to that research meeting.”

Furthermore, the court found that Brereton “knew or ought to have known from the plaintiff’s letters and the general circumstances that the plaintiff would be placed at a significant disadvantage if he did not agree to a further extension.”

It found that the school had not made it clear to Smith that he could bring a friend to the meeting for moral support, by way of a reasonable adjustment. “The respondent never addressed this request directly,” the tribunal said. “Ms Gajjar simply repeated the usual formulation that the claimant could bring a union representative or colleague, and asked him to name his representative. She added that legal representation was not permitted. She said nothing about a ‘friend’.”

“This puts the claimant at a significant disadvantage compared to people who do not have a disability or who do not have his disability,” the judge said.

It was also held that dismissing Smith was not a proportionate means of achieving a legitimate aim, and that the dismissal amounted to disability discrimination. “The impact of the dismissal on the claimant was very serious, emotionally, financially and on his professional position,” the judge said. “Our main concern is that the respondent proceeded directly to dismissal without following any of the earlier stages of any of their policies, whether on ability, absence or disciplinary action.”

“The respondent proceeded very quickly to what would have been the final stage of one of the policies, without any prior formal warnings; without any formal meeting at which he could have been represented; and after an investigation meeting which took place without prior notice, which was not advertised as such, which was called informal and which dealt in detail with only two of the five grounds for dismissal. This was compounded by the fact that the dismissal decision was taken without personally hearing the claimant. He was also unable to bring a friend to the appeal hearing.”

Ultimately, the tribunal ruled: “The dismissal took place without the claimant’s voice being heard in person or in writing. The claimant wanted to be heard in person. That was a reasonable request given what was at stake and his mental health.”

Comments from lawyers

Charlotte Smith, a partner in the employment team at Walker Morris, said the case was “a reminder that even where employers have largely supported employees who have been off sick for extended periods, that will not be enough to defend claims where there is later an ‘unnecessary acceleration’ towards redundancy, without structured procedures being followed.”

“When an employer decides to dismiss an employee because of something arising from his or her disability, he or she must be able to justify his or her actions as a proportionate means of achieving a legitimate aim. When assessing proportionality, it is important to consider whether reasonable adjustments have been made,” she said.

“In this case, the court was critical of the procedure followed by the employer (and) those procedural errors were costly.”

Hina Belitz, employment partner at Excello Law, stressed that a key element of this decision was that, while the school had a legitimate aim in terms of ensuring educational standards, dismissal was not a proportionate step to take. “Employers should always bear in mind that dismissal is the most severe penalty available,” she said. “Employers should always ensure that they draw their employees’ attention to the relevant disciplinary policies and follow their own procedures when seeking to escalate disciplinary action, particularly where an employee is ill and would benefit from this predictability.”

Background

Jury’s comments

Comments from lawyers

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