Background:

The claimant was employed as a Teacher Development Policy and Delivery Senior Advisor from January 2022 until she resigned in October 2022.  The claimant relied upon complex PTSD, ASD, Dyslexia with traits of dyspraxia and dyscalculia and Long Covid as disabilities in relation to her case. The Tribunal found as a preliminary issue that the neurodivergent condition of dyslexia with traits of dyspraxia and dyscalculia amounted to a disability under the legislation.

Issues arose when the claimant’s probation period was extended for three months.  This was because several performance issues arose and were raised by the claimant’s task managers. The respondent felt that the claimant did not step up to the role of knowledge lead for her area as expected. This was from the fact that she was underperforming with errors in documents and a lack of attention to detail in drafting. The claimant argued that the probation extension was discrimination based on her disability, namely the complex PTSD.

A further issue was the refusal to grant disability leave when the claimant stated that she had been impacted by work-related stress and needed time to recover. This was initially granted but after a discussion with HR they advised that the claimant’s request should be refused and that it would be classed as ordinary sickness absence. The use of disability leave would mean that they would receive full pay, and it would not count as a sickness absence.  Again, the claimant argued this amounted to disability discrimination.

Outcome:

The claimant’s claims were dismissed.  On extending the probation, the Tribunal found that the claimant’s disabilities were the significant reason she was making mistakes and underperforming.   The respondent argued that the extension was a proportionate means of achieving a legitimate aim. This was accepted because any employer would want to ensure a new employee can perform the work they are assigned. In terms of proportionality the Tribunal considered the three options available to the respondent. Those being to pass the claimant, fail the claimant and dismiss her or extend the probation. To pass the claimant would not have been reasonable as she was not performing as required and therefore the extension was proportionate.

On the refusal to grant disability leave, it was found that it did amount to an act of unfavourable treatment.   The policy stated:

‘Employees with a disability can apply for disability leave if they are fit for work but need time off to attend appointments for treatment, rehabilitation, assessment or in exceptional circumstances if they are not able to work safely or effectively until new or improved workplace adjustments are put in place.’

The Tribunal found that none of the policy applied to the claimant’s situation. The claimant argued that she was not able to work safely but that was in relation to improved workplace adjustments which were not being considered at that point. Accordingly, the claim was dismissed.

Practical Guidance for Employers:

This case provides useful guidance on the application of various policies to those with disabilities.  When it came to extending the probation, it was simply put by the Tribunal in considering the three options that the employer had. When considering those three options alongside whether the actions of the employer were proportionate this demonstrated how the extension was to the benefit of the claimant when compared to the reasonable alternatives. Additionally, when considering the application of a policy the starting point should always be its content as seen with the disability policy here. This demonstrates the importance of ensuring that such policies are drafted clearly and consistently.

https://assets.publishing.service.gov.uk/media/66b2369ffc8e12ac3edb0b5f/Ms_Michaela_Smith_v_Department_of_Education_-_2212199-2022.pdf