Gary Day-Davies vs United Learning Trust
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If you believe an employee may need reasonable adjustments so that they can perform to the best of their ability, seek the advice of the occupational health department to get practical advice on how to support employees with disabilities or health conditions. If you don’t have an Occupational Health team, you can go outside your organisation to get an expert medical opinion on an employee’s disability or medical condition may sometimes be necessary, especially helpful if the employee has a complex medical history or specific needs.
In Gary Day-Davies vs United Learning Trust, Mr Day-Davies had been working for the trust since February 2015 as a humanities teacher. He also has a type of bipolar disorder which meant he sometimes experienced mania and hypomania at work. Mania and hypomania are periods of over-active and excited behaviour that have a significant impact on your day-to-day life, according to the mental health charity Mind. In Mr Day-Davies case, these periods would also be accompanied by a depressive episode.
During a staff training session that was took place on 4th September 2017, prior to pupils returning from summer holidays, Mr Day-Davies behaviour was noticed by two senior staff members - Andrew Griffin, a principal for one of the trust’s schools and Anne Lucas, a HR manager for the trust. The Manchester Employment Tribunal (MET) heard that Mr Griffin and Ms Lucas “were of the view that he [Mr Day-Davies] was unfit to remain at work”.
After the training session Mr Day-Davies spoke with Mr Griffin and Ms Lucas to discuss a telephone consultation he had with the trust’s occupational health department, who also thought that Mr Day-Davies was unfit for work after a period of sick leave and a previous suicide attempt the month before. Mr Day-Davies told Mr Griffin and Ms Lucas that he disagreed with the occupational health department’s verdict because he was of the opinion that they were not familiar enough with his condition to make that judgement. Despite this, Mr Griffin told Mr Day-Davies he could stay in school for that day and the next, but would be put on medical suspension when the pupils returned to school. The trust’s Head of HR, Lisa Cole, supported Mr Griffin and Ms Lucas’ actions because she said the school had a duty of care to both Mr Day-Davies and the pupils.
The trust also told Mr Day-Davies that once the trust had received a second opinion about his disability from another medical professional, the suspension would be reviewed and he would be able to come back to work. Mr Day-Davies authorised his GP to release a psychologist’s report stating that he posed no danger to himself or others, but the trust initially rejected the report because it was a psychological report, and they wanted a medical one.
They had later changed their mind about the evidence provided by Mr Day-Davies, even though he had not provided the medical report which was initially requested. This meant that Mr Day-Davies was suspended for longer than he should have been, which made Judge Holmes question why the trust later “changed its mind” and allowed Mr Day-Davies to return to work on the basis of the same medical advice it initially rejected. The tribunal therefore concluded that the suspension was discriminatory because the suspension review process was not consistent.
To avoid disability discrimination claims similar to the case above, employers are advised to do the following:
- Be willing to consult other medical professionals such as an employee’s GP when conducting an occupational health assessment as they can provide valuable insight into supporting disabled employees.
- Make sure managers and senior leaders understand the role of occupational health, how the advice from occupational health can help inform decisions and how they can help employees stay in work.
- Train managers and senior leaders about suspensions. This will help them assess whether a suspension might actually be needed and if they are at risk of keeping an employee out of work for longer than necessary, which can lead to a breach of contract or discrimination if the reasons for the suspension are not communicated clearly.