Engaging with your occupational health (OH) professional and following their advice formed the basis of our recent podcast.   

Only two weeks later the case of Shearer v South Lanarkshire Council was published demonstrating the cost of not following this advice. At £61,074.55 it’s a high cost! 

Key learning points

• You may not agree with the recommendations of an occupational health report but be willing to engage, ask more questions and look for a workable solution.
• Be willing to take the symptoms of menopause as seriously as you would any other condition with which an employee is suffering.

Case facts

Mrs Shearer was a teacher with 31 years of experience. On 17 June her head teacher informed her that she was to move from her role at Clydesdale Support Base (where she had taught since 2015) to Kear Secondary School. 

The transfer would take effect from 16 August 2022. Mrs Shearer at the time was taking medication for high blood pressure, anxiety, low mood, and menopausal symptoms. The prospect of moving to this new school worsened these symptoms because she believed there were high levels of violence and injury to teachers at the school and there was ineffective management which resulted in staff being blamed for behavioural issues. 

Mrs Shearer emailed the head teacher and her line manager setting out her objections several times and attempted to negotiate her staying at Clydesdale pending an OH referral. She was unsuccessful and some of her emails were ignored. 

An OH assessment was arranged in October. The OH professional noted that the move to Kear school would negatively impact the psychological health of Mrs Shearer and recommended a stress risk assessment. 

The latter was completed but the head teacher noted, ‘I’ve dipped in and out of this and generally feel not inclined to engage with discussion on each point’.  Over the next six months, Mrs Shearer submitted a grievance which was rejected and a second OH referral again confirmed that a move to Kear school was not feasible and recommended exploring options for a mutually agreeable way to proceed. This again was ignored.

When Mrs Shearer did not return to work on 15 May 2023 having been signed off on long-term sickness absence, the council commenced a formal capability procedure. They offered two alternative posts for Mrs Shearer neither of which were reasonable alternatives. Her employment was terminated on 22 September 2023 on the grounds of capability. Her appeal against the dismissal was rejected and she subsequently successfully brought claims for unfair dismissal and disability discrimination (discrimination arising from a disability). 

What can you learn from this case?

• Do not dismiss an occupational health report without consideration of its findings and recommendations.  As an employer, you may not agree with either the premise of the report (as was the case here) or consider you can make the required adjustments.  However, that should not stop you from continuing to engage with either the OH professional and/or the employee to see whether some consensus can be found to avoid long-term sickness absence and potential dismissal. 
• Do not continue to drive your own agenda despite advice to the contrary.  The head teacher in this case appeared intent on moving Mrs Shearer to this alternative school despite two OH reports and her absence with anxiety demonstrating that this was not a good idea. 
• Be willing to take seriously the symptoms of menopause and its debilitating effect on some women.  Whilst there is no mention in the case that the school’s refusal to engage with Mrs Shearer’s concern related to their view of her symptoms, we have seen other cases where employers will not take the concerns and suffering of women with menopause symptoms as seriously as they would other conditions. 
• Before dismissing an employee on the grounds of capability ensure that you have looked at all other reasonable alternative roles. The two roles offered Mrs Shearer in this case were unreasonable given her anxiety and health record. The tribunal ruled that dismissal was unfair as no reasonable employer would have carried out the dismissal without a more rigorous search for an alternate position within the sizeable group of schools.   

If you require any advice or support regarding capability dismissals, menopause in the workplace or other employment law issues please do contact me.