Appleby v The Governing Body of Colburn Community Primary School and another

The Employment Appeal Tribunal (EAT) has considered a claim for disability discrimination where a school required staff to attend work by 8:45am.

In 1992, the claimant suffered the loss of a baby in Spain. Upon moving to the UK in 2006, she became a volunteer at the school and was employed as a General Teaching Assistant from 2007. Soon after June 2007 the claimant was diagnosed with narcolepsy. The claimant had some sickness absence but following the receipt of distressing news regarding the kidnap of babies in Spain her sickness absence due to mental health became more frequent from 2012. Her absence caused running difficulties and she was dismissed in October 2013.

The claimant brought several claims of disability discrimination including failure to make reasonable adjustments.

The school was found to have two provisions, criteria and practices of their Absence Monitoring Policy (AMP) and the start time of 8:45am. The claimant sought adjustments to the triggers in the AMP; to discount certain disability related absences and to allow a flexible 9am start time.
The Employment Tribunal (ET) found that the narcolepsy was a disability and the school was aware of this from September 2013. Although the claimant suffered from a mental disability, the school had no knowledge of this nor ought to have known, therefore, the duty to make reasonable adjustments only arose in relation to the narcolepsy. The absence policy did not disadvantage the claimant because her absences were not because of narcolepsy and there was enough flexibility in the policy to discount disability absences. Whilst the 8:45am start time caused a disadvantage so the duty to make adjustments arose, this could be objectively justified by the requirement to have staff physically present. The other claims were dismissed.

The claimant appealed to the EAT who found that the ET had not erred in its finding of the mental impairment and the school’s awareness of this. The EAT also commented that if the mental disability was known then the school’s proportionate means of achieving a legitimate aim of running the school effectively would still arise.

Lead Business Partner Andrew Smith says of this case: “Whilst schools may have sympathy for employees who are experiencing difficulties because of their disability, this decision shows that the needs of the school can still win out in the face of a discrimination claim.”